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October 27, 2016

Defense attorneys assert Ohio's new execution protocol is akin to "burning at the stake"

As reported in this local AP article, capital defense attorneys in Ohio are not so impressed with the state's recently announced new execution protocol. The piece is headlined "Lawyers: Ohio Execution Plan Like Burning Inmates at Stake," and here are excerpts:

Ohio's new lethal injection system is akin to burning inmates at the stake or burying them alive, say federal defense lawyers rushing to stop the state's first execution in three years.

Ohio's three-drug method, announced Oct. 3, is worse than a similar procedure used years ago, and multiple problems remain with the way the state prepares and carries out executions, federal public defenders said in a Wednesday court filing.

The filing attacks the first drug in that process — midazolam, meant to sedate inmates — as unlikely to relieve an inmate's pain. The drug was used in problematic executions in Arizona and Ohio in 2014. But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma.

According to the filing, because midazolam is not a barbiturate and cannot relieve pain, inmates are likely to experience "severe physical pain," mental suffering and anguish, As a result, "such an execution would be inhuman and barbarous, akin in its level of pain and suffering to being buried alive, burning at the stake, and other primitive methods long since abandoned by civilized society," the filing said.

Executions have been on hold in Ohio since January 2014, when death row inmate Dennis McGuire gasped and snorted during the 26 minutes it took him to die. It was the longest execution since Ohio resumed putting inmates to death in 1999. The state used a 2-drug method with McGuire, beginning with midazolam, but then discontinued it. Afterward, Ohio struggled for years to find new supplies of drugs, which have been placed off limits for executions by drug makers. Now the prisons agency says it will use midazolam; rocuronium bromide, which paralyzes the inmate; and potassium chloride, which stops the heart.

On Jan. 12, Ohio is scheduled to execute Ronald Phillips for the rape and murder of his girlfriend's 3-year-old daughter in Akron in 1993. The state also plans to carry out executions on Feb. 15 and March 15. But the federal defense lawyers say the new procedures are unconstitutional and executions in Ohio should be put on hold. The state will respond with its own filing, said Dan Tierney, a spokesman for Ohio Attorney General Mike DeWine.

Prior related post:

October 27, 2016 at 09:35 PM | Permalink


Interesting that the story waits until the penultimate paragraph to inform it's readers that the US Supreme Court rejected the exact claiming being made by the public defenders.

Posted by: Public Servant | Oct 28, 2016 9:43:52 AM

Prior SCOTUS rejection of arguments rarely has tended to slow down abolitionist lawyers before, has it? After all, that funky Eighth Amendment has a way of evolving pretty quick sometimes (though pretty darn slow, it seems, when dealing with punishments other than death).

Posted by: Doug B. | Oct 28, 2016 9:49:48 AM

Lawyers will lawyer, but that shouldn't prevent a journalist from ensuring the readers are informed that the arguments of the lawyer have been rejected. Leaving this fact until the end of the story "buries the lede."

Posted by: Public Servant | Oct 28, 2016 10:04:22 AM

The article first states in two sentences (paragraphs) the claim being made, which is the story being told here. Then, in the third paragraph, not the "penultimate," says: "But the U.S. Supreme Court last year upheld the use of midazolam in executions in a case out of Oklahoma." Then, it continues about the claim. The specific claim is that "new procedures" are problematic. It then ends by (again) addressing the previous Supreme Court case.

I would note that a NEW protocol was never actually decided upon by the Supreme Court though the previous opinion helps show if it is okay. The article ends with the Supreme Court opinion. I think it actually suggests to many readers that it's final -- they decided, claim fails. But, not necessarily. The NEW procedure has to match the rule. To me, the comment suggests the article is somewhat slanted in the favor of the "abolitionists" here. I'm not quite sure about that. If I was them, I would want an additional paragraph.

Anyway, advocates on all sides, of course, not just "abolitionists," are not "slowed down" too much ... they keep on fighting, trying to go push as far as possible. That's their job. There also has been various cases that pushed the law on non-capital cases, from prison conditions, life imprisonment for minors and so on.

Posted by: Joe | Oct 28, 2016 10:44:02 AM

If it's referring to the case I'm thinking of, the Supreme Court didn't OK the procedure, they shut down challenges to the procedure unless opponents of the procedure can come up with a better one. That's a far cry from the same thing.

Posted by: Erik M | Oct 28, 2016 1:48:06 PM

I assume they are talking about Glossip v. Gloss here.

Posted by: Joe | Oct 28, 2016 2:58:31 PM

Glossip held that the prisoners failed to identify a known and available alternative method of execution and that the District court did not commit clear error when it found Oklahoma's use of a massive dose of midazolam entails a
severe risk of pain.

Posted by: DaveP | Oct 29, 2016 3:28:06 PM

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