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July 26, 2017

Will Ohio successfully get its machinery of death operational today after 3.5 years of delays?... UPDATE: Yes

The question in the title of this post is prompted by the fact that, after years of difficulties securing execution drugs and then litigation delays, Ohio appear poised to have its first execution today since January 2014.  This AP story, headlined "US Supreme Court denies stay of execution for Ohio convict," provides the basic backstory:

A condemned child killer was scheduled to die on Wednesday in the state's first execution in more than three years after the U.S. Supreme Court denied his requests for more time to pursue legal challenges. Ronald Phillips was transported to the death house at the Southern Ohio Correctional Facility in Lucasville on Tuesday morning, about 24 hours before his execution was planned. He was convicted of the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.

Justices denied the 43-year-old Phillips a stay on three requests, with a pair of justices dissenting on a request by Phillips that was joined by two other death row inmates with upcoming execution dates. The inmates had asked the court for a delay while they continue challenging Ohio's new lethal-injection method. Justices Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, dissented, arguing the inmates had demonstrated a likelihood of success at trial. Sotomayor objected to the court's "failure to step in when significant issues of life and death are present."

The death penalty has been on hold in Ohio since January 2014, when a condemned inmate repeatedly gasped and snorted during a 26-minute procedure with a never-before-tried drug combination. Republican Gov. John Kasich halted upcoming executions after that, and delays have continued because the state had trouble finding new supplies of drugs and death row inmates sued on the grounds the state's proposed new three-drug execution method represented "cruel and unusual punishment."

Phillips' arguments were backed up by 15 pharmacology professors, who stepped in Monday to argue that a sedative used in the process, midazolam, is incapable of inducing unconsciousness or preventing serious pain. A federal court last month upheld the use of midazolam, which has been problematic in several executions, including Ohio's in 2014 and others in Arkansas and Arizona.

Phillips also sought a delay based on his age at the time of the killing. He was 19, older than the Supreme Court's cutoff of 18 for the purposes of barring executions of juveniles. His request argued the age should be 21. His lawyers said he had such "psychosocial deficits" when he was picked up by police that they initially took him to a juvenile, rather than an adult, facility.

Attorneys for the state argued Phillips made meritless, often conflicting, legal claims. "Phillips argues that youth, like IQ, cannot be reduced to a number. But he also argues that the Eighth Amendment prohibits the execution of adults under age twenty-one," they wrote in a court document filed Tuesday. "He cannot have it both ways; if age cannot make one eligible for death, it cannot make one ineligible for death."...

Phillips has had several previous delays to scheduled executions, most notably in 2013, when he made a last-minute plea to donate his organs. He said that he wanted to give a kidney to his mother, who was on dialysis, and possibly his heart to his sister. His request was denied. His mother has since died.

If Ohio completes this execution and two more scheduled for 2017 without difficulties, the state could be poised to be the most active execution state in coming years. Ohio has 10 "serious" execution dates already scheduled for 2018, and I believe the state has enough lethal injection drugs to complete them all.

UPDATE:  This local story reports that "Akron child killer Ronald Phillips was put to death Wednesday ... by lethal injection at 10:43 a.m. Wednesday at the Southern Ohio Correctional Facility in Lucasville." According to the report, "there were no complications, and witnesses said Phillips showed no signs of gasping, choking or struggling."

July 26, 2017 at 03:40 AM | Permalink


It would be an interesting exercise to make a list of all those Ohioans who might qualify as being contributory, directly or indirectly, to the scar of notoriety that is apparently to be written into the history of the "great" State of which you are so proud. Perhaps another botched execution, or later judgement on the potency of the drugs to be used, will spare their blushes (but not their consciences).

Posted by: peter | Jul 26, 2017 4:23:50 AM


Posted by: federalist | Jul 26, 2017 11:30:00 AM

Ohio: The Execution State.

Posted by: Joe | Jul 26, 2017 11:32:24 AM

Sotomayor's "life and death" nonsense is really getting tiresome. The guy is under a sentence of death with zero question of guilt--so the issue isn't really "life and death" but whether he'll suffer untoward pain. Life and death is more apt for situations of innocence. Perhaps Sotomayor had a little Freudian slip here--she wants to abolish the death penalty, so every little roadblock helps that goal. So it is a "life and death" matter to her. Of course, that's lawlessness.

He raped a three-year old girl. Good riddance.

Posted by: federalist | Jul 26, 2017 12:09:45 PM

I think how a person dies is a matter of "life and death," innocent or not, and would think the dispute would be over "significant." Something that split the court of appeals.

Wikipedia's page on Ronald Phillips notes: "Fae Evans [the mother/gf] was convicted of involuntary manslaughter and child endangering for her involvement and sentenced to a maximum of 30 years in prison. She died of leukemia on July 8, 2008, aged 41, at the state prison hospital in Columbus, Ohio."

Posted by: Joe | Jul 26, 2017 1:04:16 PM

Joe, once again tendentious silliness. Putting aside hyperbole or figurative speech, when something is a matter of "life and death" the matter represents binary outcomes--someone either lives or dies. And while that is the case with respect to a stay, it's not the legal issue--Sotomayor's trompe l'oeil is worthy of criticism and displays a lack of intellectual honesty that, in my view, calls into question her fitness.

Posted by: federalist | Jul 26, 2017 1:31:21 PM

Interesting that Ohio carried out the sentence during normal working hours (he was pronounced dead at about 10:45am) rather than late at night as seems typical.

Posted by: Soronel Haetir | Jul 27, 2017 2:18:16 AM

So now that midazolam has been used without incident in 6 executions AZ AR(4) and OH are we done hearing from the lefty nuts the lies and distortions? Probably not. At least now they acknowledge the number of executions this year will exceed last... Boo hoo. Every week there's a lib editorial board railing against DP. They just don't get it. We are tired of delays. CA better start its "machinery" soon. Justice now. KILL the KILLERS

Posted by: DeanO | Jul 27, 2017 11:46:30 AM

Soronel, other states are moving toward day or early evening execution times. Not sure if there is a legal reason for it, but from a practical perspective it makes sense.

The scheduled execution time creates an effective deadline for parties to file pleadings and judges to issue rulings on claims related to the execution. When that deadline is during regular "office hours" or shortly after the typical end of regular office hours, the legal process works more like it usually does. An execution scheduled for late at night or early morning requires adjustments to normal procedures on the part of the attorneys and the courts. (Yes, executions by their nature require some changes to normal procedures, but given the flurry of last minute filings, late night executions require additional changes. Additionally, people are less fresh and cogent when they have been up 18 or 19 hours.) I can remember several cases in which defendant's raised unusual claims that led to the Supreme Court granting a temporary stay so that the Justices could look more closely at the issues in the morning; something that I can't remember happening on early evening or afternoon executions. And such a delay requires the prison to stand down and then restart the following day after the stay is lifted.

Posted by: tmm | Jul 27, 2017 11:48:33 AM

"Joe, once again tendentious silliness."

How someone dies is a "matter" of life and death, particularly in this specific case where a stay would actually delay killing someone. This is a common sense way of using language though people can use it differently. It's a silly thing to focus on as compared to the alleged insignificant claim raised. That is the real issue here.


Per DeanO. We never kill many killers in this country. We always only killed a small number of them using arbitrary criteria that repeatedly has been shown to have problems. A variety of types of people have said this. It is unclear to me reading accounts how without incident the particular means really have been -- more than once I saw citation of some problem being evident.

But, maybe the means is okay this time though over and over again problems have popped up over the years. Lethal injection as a whole remains problematic in certain respects, particularly its use of medical means that causes medical ethics concerns. And, there remains the usual problems with the penalty as a whole.

Still, some originalists/conservatives argue the 8A is specifically concerned in a limited way on the pain and suffering of specific punishment methods. So being particularly concerned, including in a redundant way given the importance of the matter even in respect to protecting the guilty (as does many rights), is sensible.

Posted by: Joe | Jul 27, 2017 12:47:26 PM

Oh good grief, Joe. Even you, I think, can see that Sotomayor is engaging in sophistry here. For purposes of the instant litigation (other than the additional BS claims re: youth), the issue was not "life and death", but rather the method of execution. It's of the same silliness as "there's a man's life at stake" when talking about the appropriateness of a death sentence. Well, yes "a man's", but let's be honest--it ain't a random man; it's a murderer. Sotomayor would have been better served saying that this is a matter of death with all the weight that entails.

And no, it isn't "the real issue here"---the execution vel non of a murderer who committed an absolutely heinous crime isn't as important as having an intellectually honest Supreme Court Justice. Let's face it, the "wise [sic] Latina" isn't so wise, and to add intellectual dishonesty to the mix shows a real problem. So yes, my focus is appropriate.

The medical ethics "concerns" are just a load of BS as well. The execution of a criminal isn't the practice of medicine.

Posted by: federalist | Jul 27, 2017 1:22:36 PM

"Well, yes "a man's", but let's be honest--it ain't a random man; it's a murderer."

So, a man's life is at stake, it's a matter of life and death, but the fact it is a murderer in some fashion should make us less concerned? Well, okay. Still, rights apply to murderers, which is so obvious to be silly to say, surely, and the ultimate point here still seems to be the "significant" strength of the claim. If the claim is strong, like Scalia protecting the right of child molesters testifying face to face to their child victims, the fact a murderer is involved doesn't erase it.

So, "life and death" is a silly thing to go on and on about. This is useful to note as a general principle because we repeatedly waste time on side issues when arguing about stuff. Taking a potshot at Sotomayor when this split the court of appeals so much it went to a closely divided en banc vote is as silly as people taking potshots at Thomas when the real question is the wider questions at issue.

A medical means is being used to execute and that raises medical ethics concerns in part because in the process medical personnel are either involved in some fashion or it is done less safely because using medical means would logically involve using medical personnel.

Posted by: Joe | Jul 27, 2017 2:10:13 PM

Joe, you are truly painful. We all know the game here--I did not say that murderer's don't have rights. You know it, and I do too, so your attempt to pivot from the point of my criticism of the "wise [sic] Latina" fails.

Framing the debate as "a man's life is at stake" or "life and death" when we are talking about a stay motion ignores the reality on the ground, so to speak. The guy whose life is at stake is a convicted murderer who has had a full panoply of review of the issues related to crime and sentence. In other words, it's a characterization based on a selective reading of the situation. What makes Sotomayor's dissent silly is that the choice of whether Phillips ultimately lived or died wasn't even an issue. Sophistry in legal opinions is disrespectful to litigants and to the society as a whole. It is an exercise in dishonesty.

People who don't like the DP tend to overstate the big deal-ness of executing a murderer. The guilt-innocence determination of a garden-variety felony is of more moment.

Execution is, almost by definition, not medicine. Barring medical personnel from doing it for "ethics" is just dressing up anti-capital punishment opinions as ethics.

Posted by: federalist | Jul 27, 2017 6:33:18 PM

I have addressed the medical training in the past. Government officials should begin to read this blog.

You have prison guards or volunteer executioners. They get EMT training. They go on calls and start IV's under the most difficult circumstances, on people upside down, on people with low blood pressure from shock, with collapsed veins, in a rush, in the rain, on people squirming in pain. Do that for three months, you will be able to get good IV's in the more controlled setting of a prison.

Then make barbiturates batches, and sell them to the states for executions. Use the recipes of the 19th Century. They are not under the jurisdiction of the FDA, since they are not medications. They are under the jurisdiction of the Agriculture Department, being poisons for the taking of life, not for the saving of life.

Posted by: David Behar | Jul 28, 2017 12:44:08 PM

"I did not say that murderer's don't have rights."

Didn't say otherwise.

"What makes Sotomayor's dissent silly is that the choice of whether Phillips ultimately lived or died wasn't even an issue."

It is still a matter of "life and death," since how you die is that. In fact, when he died was an issue, since if the dissent got its way, he wouldn't have been executed when he was without further procedures and safeguards.

It is disrespectful to litigants and to the society as a whole. It is an exercise in dishonesty, to focus so much on false narratives.

Posted by: Joe | Jul 31, 2017 11:19:08 PM

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