« Ninth Circuit puzzling over whether Tucson shooter Jared Loughner can be forcibly medicated | Main | New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules »

July 8, 2011

Federal district judge finds Equal Protection Clause violated by Ohio's injection processes

As detailed in this breaking AP report, a federal district judge in Ohio has issued a ground-breaking ruling this morning in the course of ordering a stay to an Ohio execution planned for later this month:

Kenneth Smith was scheduled to be put to death July 19 for killing a husband and wife in their Hamilton home during a 1995 robbery.  U.S. District Court Judge Gregory Frost on Friday criticized what he called Ohio's haphazard application of its death penalty protocols.

If upheld on appeal, Frost's decision would allow Smith to argue in an upcoming trial that the state violates the constitution with its uneven application of its rules for executing inmates.

In this controversial and often-politicized context, it think bears noting that Judge Frost (bio here) is a former local prosecutor who was appointed to the federal bench by President Bush in 2003.  With that background, here is how Judge Frost's 60-page stay opinion in Smith (which can be downloaded below) gets started:

It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not. This is nonsense.

This matter is before the Court for consideration of Plaintiff Kenneth Smith’s motion for a temporary restraining order and a preliminary injunction (ECF No. 908), Defendants’ memorandum in opposition (ECF No. 920), Plaintiff’s reply memorandum (ECF No. 923), Defendants’ incorporated motion for summary judgment (ECF No. 919), Plaintiff’s incorporated summary judgment memorandum in opposition (ECF No. 925), and Plaintiff’s supplemental memorandum related to the June 29, 2011 hearing (ECF No. 944).  The issue presented by this briefing is relatively simple: has Plaintiff demonstrated that he is likely to succeed in establishing that the Ohio has an unconstitutional execution policy so that he deserves a stay of execution that will afford him the chance to prove his case?  Because Plaintiff has demonstrated a substantial likelihood of succeeding on his Equal Protection claim, this Court finds the motion for injunctive relief well taken.  Thus, it is ORDERED, ADJUDGED, and DECREED that the State of Ohio, and any person acting on its behalf, is hereby STAYED from implementing an order for the execution of Kenneth Smith issued by any court of the State of Ohio until further Order from this Court.

Download Order_granting_TRO_and_Stay_of_Execution_re_Smith

This Smith ruling seems certain to be appealed to the Sixth Circuit, though how and how quickly the Sixth Circuit (and perhaps also the Supreme Court) will consider this matter is harder to predict (and will be fun to watch over the next few weeks).

July 8, 2011 at 11:45 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Federal district judge finds Equal Protection Clause violated by Ohio's injection processes:


lol well if this is how the state wrote their procedures!

"It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not."

The retards need to be stopped!

Posted by: rodsmith | Jul 8, 2011 12:18:38 PM

Putting 'retard' or 'numbnuts' in discussions about serious topics is a good way to be ignored.

Posted by: MikeinCT | Jul 8, 2011 1:41:50 PM

true but the problem is it SO OFTEN FITS!

sorry any politican dumb enough to in writing state the above IS a retard!

Posted by: rodsmith | Jul 9, 2011 10:55:18 AM

"retarded" is a distasteful term for a certain mental deficiency. These individuals often understand the concept of applying the rules consistently. It is one of those "things I learned in kindergarten" or "no fair!" things.

Anyway, the word is offensive.

Posted by: Joe | Jul 10, 2011 6:43:15 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB