Fordham Law


With New Method, Ohio Resumes Executions

Professor Deborah Denno in The New York Times, December 08, 2009

Media Source

With New Method, Ohio Resumes Executions
By ROBERT MACKEY

Update | 1:46 p.m. My colleague Ian Urbina reports that “Mr. Biros, 51, died at 11:47 a.m., holding a white scarf. The scarf, which symbolizes a blessing, was given to Mr. Biros by two Buddhist spiritual advisers that Mr. Biros had consulted in recent weeks.”

Update | 12:00 p.m. The Warren Tribune Chronicle reports that the state of Ohio has executed Kenneth Biros. According to The Tribune Chronicle:
Kenneth Biros was pronounced dead at 11:48 a.m. after a one-drug lethal injection. The family of murder victim Tami Engstrom, who witnessed the execution, applauded his death.

Aaron Marshall of The Cleveland Plain Dealer explained that Mr. Biros’ lawyer, Tim Sweeney, had failed to convince federal courts to block the execution by arguing that Ohio was experimenting on his client with a new procedure for lethal injection using just one drug.

Update | 10:14 a.m. The Ohio Department of Rehabilitation and Correction tells The Lede that the U.S. Supreme Court has denied a request to halt the execution of Kenneth Biros, a convicted murderer, and he will be put to death today by lethal injection.

WFMJ, an NBC affiliate in Ohio that has a reporter at the prison, said that the execution is expected to go ahead at about 11 a.m. WFMJ added:

This morning around 8:13 Biros kissed his mother goodbye through cell doors. He had requested to wear a white scarf during his execution but that was denied by the Ohio Department of Corrections. He can have the scarf with him but cannot wear it.

Update | 10:01 a.m. The Tribune Chronicle in Warren, Ohio reports: “Kenneth Biros’ scheduled 10 a.m. execution is delayed until the U.S. Supreme Court rules on his final appeal.” The newspaper adds that “The prison director will speak to the media shortly.”

Earlier this morning an NBC affiliate in Ohio, WFMJ, reported: “Attorneys for Kenneth Biros have filed an emergency request with the United States Supreme Court asking for his execution to be stopped.”

Original Post | 9:13 a.m. On Tuesday morning the state of Ohio plans to execute a convicted murderer using a new method of lethal injection that relies on a single drug, three months after a failed execution prompted officials to revise the way the state administers the death penalty.

As Reginald Fields of The Cleveland Plain Dealer reported on Monday:

Barring a last minute legal stoppage, the state at 10 a.m. will execute death row inmate Kenneth Biros with a one-drug intravenous lethal injection, a method never before used on a human. Even the newly minted backup execution plan — injecting drugs directly into a large muscle — is untested.

The state is ready to press forward, relying on results from testing on animals and opinions of medical consultants who say Ohio’s revamped measures will be more efficient and humane and that it will quiet critics.

In an editorial opposing Ohio’s return to executions, The Plain Dealer described the new method as “a massive overdose of anesthesia, akin to how a pet dog or cat is ‘put to sleep.’”

In September, the execution of Romell Broom, who was convicted of raping and murdering a 14-year-old girl, had to be halted after prison officials in Lucasville, Ohio, were unable to find a usable vein in which to administer a lethal injection. That failure led officials to stop using a method that required a sequence of three injections of different drugs, and adopt the new single-drug procedure it plans to use for the first time on Tuesday.

Critics of the death penalty have pointed out that no one knows how long the new procedure might take to work, and that the new method still requires the execution team to find a usable vein. Kevin Werner, of Ohioans to Stop Executions, told The Plain Dealer that the state “still hasn’t addressed any of the problems with the execution of Romell Broom.”

Deborah Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, told The Columbus Dispatch that Ohio’s new procedure could be ruled unconstitutional by the United States Supreme Court, if it is found not to be “substantially similar” to the three-drug method used by the state of Kentucky, which the court approved last year.

In a statement to reporters, Ms. Denno said that Ohio’s new procedure is “a method of execution never before used on anyone, anywhere.” She added: “This form of execution has egregious problems associated with it, and it contravenes the Supreme Court’s holding last year in Baze v. Rees.”

The Dispatch also reported that the family of the woman Mr. Biros was convicted of killing plans to witness his execution.

The debate about the lethal injection method has largely overshadowed the crime for which Biros was convicted and sentenced to death. But the family of murder victim Tami Engstrom has not forgotten. Her mother, brother and sister are set to witness Biros’ execution at 10 a.m. today at the Southern Ohio Correctional Facility near Lucasville.

Biros, 51, killed Engstrom, who was 22 at the time, after offering to give her a ride home from a bar on Feb. 7, 1991. He dismembered her body, leaving body parts in Ohio and Pennsylvania.

According to The Youngstown Vindicator, Julie Walburn, a spokeswoman for the Ohio Department of Rehabilitation and Correction, told reporters on Monday that Mr. Biros took communion and “has been very calm.”

Earlier on Tuesday, WFMJ, an NBC affiliate in Ohio, broadcast this video report on the Biros case: