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December 16, 2009

Will (and should) Ohio's one-drug success impact Delaware lethal injection litigation?

The question in the title of this post is prompted by this local news story out of Delaware, which is headlined "Appeals Court to hear suit on execution procedures."  Here is how it gets started:

The class-action lawsuit that has been holding up executions in Delaware for more than three years will be headed to the U.S. 3rd Circuit Court of Appeals today. If the court upholds the April ruling by Delaware District Judge Sue L. Robinson and there is no appeal to the U.S. Supreme Court, executions could soon resume in the state.

However, attorneys from the Federal Community Defender's office in Philadelphia who are representing Delaware's 20 death row inmates and legal observers believe recent developments in Ohio could prompt the court to send the matter back to district court, keeping Delaware's death penalty in limbo.

At issue in the appeal are Delaware's method of execution — a three-drug mix that has been associated with problems in the past — the state's history of mistakes in past executions and a lack of a back-up plan if executioners can't find a vein in the condemned to deliver the lethal drugs.

Because Ohio this month successfully executed an inmate using a one-drug method, courts may decide this presents a "feasible and workable" alternative, said Richard Dieter, executive director of the Death Penalty Information Center.

But, he said, just because there is an alternative which supporters claim is more humane and causes fewer problems, does not mean the appeals court will order it to be used. There also has to be evidence that the existing execution system in Delaware has significant flaws. "Given the precedent of the district court, it is going to be an uphill battle [for the plaintiffs]," Dieter said.

This story reinforces my instinct that Ohio's early success with a one-drug lethal injection protocol likely could be a critical turning point in all the debate over lethal injection.  It makes lots of sense that death-row defendants litigating in jurisdictions using the old three-drug protocol will want to spotlight (and even praise) Ohio's new one-drug method.  And yet, as I have noted in some recent posts, any and everyone seriously opposed to all forms of capital punishment are put in a difficult position whenever any death row defendants and their attorneys laud Ohio's new execution protocol.

Some recent related posts about Ohio's new execution method:

December 16, 2009 at 10:58 AM | Permalink


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The problem, of course, is what Baze actually says, not what Dieter wishes. Of course, that the Third Circuit would bar a state's use of the fugitive disenfranchisement doctrine shows that anything goes there.

Posted by: federalist | Dec 16, 2009 11:11:15 AM

Ohio's move should likely have some impact on legislative policy decisions, but no impact at all on court decisions regarding three drug protocols.

Posted by: Soronel Haetir | Dec 16, 2009 4:49:48 PM

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