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December 6, 2009

"Ohio inmate to get 1-drug, slower, execution"

The title of this post is the headline of this new AP report noting that Ohio is getting pretty close to trying out its new lethal injection protocol.  Here are some excerpts:

Condemned killer Kenneth Biros could become the first person in the country put to death with a single dose of an intravenous anesthetic instead of the usual — and faster-acting — three-drug process if his execution proceeds Tuesday.

The execution could propel other states to eventually consider the switch, which proponents say ends arguments over unnecessary suffering during injection.  California and Tennessee previously considered then rejected the one-drug approach.

Though the untested method has never been used on an inmate in the United States, one difference is clear: Biros will likely die more slowly than inmates put to death with the three-drug method, which includes a drug that stops the heart.  Lethal injection experts on both sides of the debate over injection say thiopental sodium, which kills by putting people so deeply asleep they stop breathing, will take longer....

Ohio officials contend the single-drug method should end a five-year-old lawsuit against the state that claims injection can cause inmates severe suffering. Lethal injection experts and defense attorneys for death row inmates have said the one-drug method, a single dose of an anesthetic, would not cause pain....

States with active death chambers are keeping an eye on Ohio's switch but have no immediate plans to switch.  Florida, South Carolina, Texas and Virginia are among those keeping the three-drug system for now.  "Virginia's method has been successfully used in over 75 executions and repeatedly been upheld as constitutionally acceptable," state prisons spokesman Larry Traylor said Friday.

States will likely watch Ohio's experience and the court challenges before making a decision, said Richard Dieter, executive director of the Death Penalty Information Center. The U.S. Supreme Court said last year that states would only have to change the three-drug process if an alternative method lessened the possibility of pain. Defense attorneys have also supported the one-drug option, reducing the possibility of legal challenges, Dieter said. If Ohio is successful "in making this transition, and if a few other states follow that lead, I think we will see the majority of states changing to this method of lethal injection," Dieter said.

Biros' attorneys want his execution delayed, saying the new untested method has never been used in "any other civilized country" and would amount to human experimentation.  But the same attorneys earlier advocated for the state to switch to the one-drug method.  The state "could and should shift to a one-drug protocol designed to cause death by means of an overdose of an anesthetic," John Parker, one of Biros' attorneys, said in a court filing last year.

Doctors conducting euthanasia in Europe administer thiopental sodium but also usually add pancuronium bromide.

Some related posts on Ohio lethal injection issues:

December 6, 2009 at 06:16 PM | Permalink


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I have wondered publicly, for some time, why the one drug protocol wasn't used.

I had asked several public officials why they just didn't go to the one drug protocol. Laughably, the response was more litigation. Newsflash: it doesn't matter what the protocol is, there will always be legal challenges.

I found only two reasons not to have a one drug protocol.

1) longer execution times, which doesn't really matter and
2) Overdose of anesthesia can result in coma, not death. However, a massive overdose will overcome that problem.

Of course, even though this does away with the pain issue, we can expect new challenges, based upon the newest claim "human experimentation", although the drug used has been around for about 75 years and everyone knows what the effects of a massive overdose are - induced unconsciousness, coma then death.

Posted by: Dudley Sharp | Dec 7, 2009 8:04:15 AM

"But the same attorneys earlier advocated for the state to switch to the one-drug method. The state 'could and should shift to a one-drug protocol designed to cause death by means of an overdose of an anesthetic,' John Parker, one of Biros' attorneys, said in a court filing last year."


Posted by: federalist | Dec 7, 2009 9:54:13 AM

Judge Frost has denied the stay request for Biros.

Posted by: Scott Taylor | Dec 7, 2009 10:31:07 AM

I think Frost is happy to boot this one upstairs.

Posted by: federalist | Dec 7, 2009 10:34:33 AM

I'm still trying to figure out how the oral argument goes on this one.

Parker: Your Honors, this is cruel and unusual punishment because it is experimenting on humans.

Judge X: But you admit that death under this method is painless, right?

Parker: Well, yes, but...

Judge Y: In fact, you admitted the last time you were before us that the one-drug protocol was constitutionally acceptable, right?

Parker: At that time, yes, but...

Judge Z: So, what's the problem?

Parker: Well, I just don't think we should experiment on people. Something might still happen.

Judge X: Like?

Parker: I don't know...something.

Judge Z: And your evidence for that is?

Parker: Well, I don't really have evidence per se...I am relying upon the state's failure to disprove a negative.

Posted by: Res ipsa | Dec 7, 2009 12:59:53 PM

Res ipsa --


Posted by: Bill Otis | Dec 7, 2009 2:22:30 PM

Has anyone thought to ask Mr. Biros whether he invested one one-millionth of the concern he manifests about his own possible suffering in thinking about the actual suffering of the person he killed?

Posted by: Bill Otis | Dec 7, 2009 3:04:16 PM

Judge Frost worked hard this weekend. 191 pages! I often wonder how much time Frost has spent on this case in the last 5 years. I think he would like to boot it to the 6th for good.

Posted by: DaveP | Dec 7, 2009 6:09:54 PM

I don't think Biros or his attorney's care a less about how much Tami Engstrom suffered. I sure do.

Posted by: DaveP | Dec 7, 2009 6:13:18 PM

Dave P,

The vast majority of the 191 pages are taken straight from an earlier opinion. Also the formatting used puts the least amount of text on each page that I have seen in court opinions.

As for the experimentation claim, that is directed at the two drug backup plan. The challenges put forward against the primary plan remains the same, that the people tasked with the execution are incompetent to mix the drug, that they are incompetent to start an IV and that they don't know how to assess level of consciousness. However some of the claims made by the inmates' expert make me feel dubious about his other claims. These include the risk of the drug manufacturer producing a bad batch and the drugs being stolen and replaced with something else somewhere in the distribution chain. I find his suggested requirement that a physician perform the IV start and drug mixing/administration somewhat laughable since I have never had a doctor perform these tasks for any of numerous medical procedures I've undergone.

Posted by: Soronel Haetir | Dec 8, 2009 7:40:34 AM

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