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July 8, 2011

Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story

As noted in prior posts here and here, U.S. District Court Judge Gregory Frost this morning issued a ground-breaking ruling which stays an execution based on a death row defendant's Equal Protection claim concerning how Ohio runs its machinery of death.  Though only formally dealing with only one planned execution in one state, the fundamental constitutional claims and basic litigation approach driving the Smith ruling makes the case huge for Ohio and possibly for every other state that regularly executes condemned murderers.  Let me explain.

First, the Smith ruling (60 pages long, available here) is based on Equal Protection constitutional claims that seem applicable to any and every person subject to execution in Ohio.  As noted in this recent post, Ohio has scheduled execution dates for 11 inmates over the next year, and every one of these planned executions would appear to be in jeopardy in light of the Smith ruling.  (Importantly, the Smith case is only at a preliminary posture, and a full trial of the issue is scheduled for later this year.  Still, the imposition of an execution stay for one defendant pending this trial on the merits has implications for all those in Ohio's execution queue.)

Second, the Smith ruling is premised in the developed evidence that Ohio's written protocol for lethal injection executions is never followed exactly and is often modified "on the fly."  As regular readers surely know, this problem is hardly unique to Ohio: because of the historic challenges of getting qualified and experienced medical persons to help conduct executions, as well as recent challenges in getting supplies of needed execution drugs, I suspect that many (if not all) states that conduct executions rarely follow written execution protocols exactly and often must modify these protocols "on the fly."  Thus, the Smith ruling not only likely blocks all future executions in Ohio, it possibly raises new constitutional questions about what is going on in many other states with active death chambers.

I quite doubt that many judges (either in state or federal courts) will be very eager or swiftly able to follow the lead of the Smith opinion and readily declare Equal Protection problems with other state execution practices.  But I am quite certain that many defense attorneys with capital clients facing upcoming executions will be very eager and swiftly able to take cues from the Smith opinion and readily argue (both in state and federal courts) that potential Equal Protection problems with state execution practices demand a stay and additional litigation before any more executions proceed.

Some recent related posts:

July 8, 2011 at 01:29 PM | Permalink


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Judge Gregory Frost is no strnager to granting stays delays. He's a rabid anti-DP crusader. The only judge more radical than him is Rinhardt. Hopefully this folly will end with the appeals court and finally SCOTUS.

Posted by: DeanO | Jul 8, 2011 1:49:35 PM

May both Frost and Rheinhardt live long and prosper!! Great jurists.

Posted by: anon1 | Jul 8, 2011 3:14:29 PM

I assume Judge Frost will stay all sentences of imprisonment as well, since conditions of incarceration vary greatly within institutions and from one facility to the next.


Neither imprisonment nor execution can be made identical for each prisoner. This obvious, unremarkable fact could not possibly amount to a Constitutional violation. For one thing, each prisoner is going to have slightly different body chemistry, allergies, and nutritional and age differences. Since each prisoner is going to be different, the ironic fact is that treating each with exactly the SAME procedure is what will actually produce variations in how the injection will be felt and assimilated.

This ruling is an end run around Baze, and will work as well as most district court end runs around the Supreme Court work. The reasoning of Baze, which more-or-less openly accepts the fact that some executions will be more painful than others -- fobidding only those that pose a substantial likelihood of severe pain -- is all the answer that's needed here.

Abolitionists go bonkers every time there's a ruling like this (Judge Fine's initial DP ruling comes to mind), but the rest of us can stay calm. This too shall pass, and fairly soon I would suspect.

Posted by: Bill Otis | Jul 8, 2011 3:32:37 PM

Bill Otis

I am not as confident as you are. I hope this doesn't turn into another Morales in California.

Posted by: DaveP | Jul 8, 2011 5:26:22 PM

I think the Sixth has had enough of Judge Frost. And by the way, the guy's writing is just awful.

One unbelievable part of the opinion--his bitching about a MEDICAL DOCTOR being part of the process. That, in my view, is enough to get this hack tossed off the case for bias. If this clown isn't smart enough to figure out that having a medical doctor present is ok, no matter what the protocol says, then he shouldn't be a federal judge because he's that dumb, or, more likley, he is somewhat intelligent and so blinded by ideology that he has blinders on to the stupidity of his complaints about a medical doctor's presence. Either way, the state of Ohio should no longer be subject to the whims of this less than talented federal judge.

Posted by: federalist | Jul 8, 2011 6:04:08 PM

DaveP --

Be of good cheer. The district court opinion is less an analysis of Equal Protection than a burlesque of it. Read Baze again. I think you'll come away with the stong impression that the majority there is quite unlikely to buy what Frost is doing.

The more realistic question is whether the Sixth Circuit will toss it before it gets to the Supremes, see http://www.ca6.uscourts.gov/opinions.pdf/09a0414p-06.pdf.

Posted by: Bill Otis | Jul 8, 2011 6:13:36 PM

Bill Otis

I hope you are right. I don't trust the 6th Circuit. We all know why. Your last statement is the real question. Will the 6th allow this to go to trial later this year or vacate? This has the potential to be a lengthy delay. Since Fogel got transferred out of CA, Frost is picking up the ball on LI litigation.

Posted by: DaveP | Jul 8, 2011 6:19:46 PM

federalist, good to see your continuing on call every judge you disagree with "a hack." And Bill, good to see you are of "good cheer" about being able to resume knitting when (as you hope) another guy is led off in the cart to be executed; and DaveP, expecially good to see that you "don't trust" any court that might reach a conclusion different from your own. Keep up the good work!

Posted by: anon13 | Jul 8, 2011 7:15:43 PM


thanks for including all of us in your post. Keep up the good work!

Posted by: DaveP | Jul 8, 2011 7:21:55 PM

anon1 anon13

"May both Frost and Reinhardt live long and prosper! Great jurists."

Yet, you praise these 2 judges because they reach a conclusion the same as your own.

Posted by: DaveP | Jul 8, 2011 7:34:29 PM

DaveP, that was anon1 who praised those judges, not me.

Posted by: anon13 | Jul 8, 2011 8:11:21 PM


sorry. hit too many keys.

Posted by: DaveP | Jul 8, 2011 8:13:17 PM

DeanO you write that Judge Frost is "a rabid anti-DP crusader." As I recall, so was Jesus.

Posted by: anon13 | Jul 8, 2011 8:15:18 PM

Actually this is the first time that I can recall Judge Frost blocked an execution. Some statements he made in prior opinions make today's ruling less surprising.

Posted by: DaveP | Jul 8, 2011 8:19:15 PM

anon13 --

I am happy when justice is done, yes. You aren't?

It's nothing more than that you disagree with me (and the great majority of Americans, and the Supreme Court). Must be a lot of knitting going on, eh?

Posted by: Bill Otis | Jul 8, 2011 11:05:00 PM

Ah, but you see anon--I back it up with actual facts when I call a judge a hack. Frost's complaints about the presence of a medical doctor are beyond silly.

Posted by: federalist | Jul 9, 2011 12:16:50 AM

federalist --

He's just frustrated because he (correctly) senses that the clock has already started ticking on Frost's order.

Posted by: Bill Otis | Jul 9, 2011 10:30:58 AM

I wasnt around when Jesus was crusading, maybe anon13 was, so I wouldnt assume to know what his position was. But I read Frost and Rinehardts psoitions today and their asault on the death penalty and states rights is agregious.

Posted by: DeanO | Jul 10, 2011 10:46:56 AM

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