Fordham Law


Legal questions remain over Ohio's lethal injection process

Professor Deborah Denno in The Cleveland Plain Dealer, December 08, 2009

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LUCASVILLE, Ohio — Ohio's new lethal injection process survived last-ditch court challenges and was put to use for the first time on Tuesday but legal questions about the process remain, experts say.

Kenneth Biros, 51, of Trumbull County, became the first person in the United States to be executed with a dose of just one drug, a sedative. The method runs counter to every other state that uses lethal injection and the three-drug concoction Ohio once used.

"Part of the challenge with the Biros execution is it went forward before he could develop his case," said Fordham University law professor Deborah Denno.

"Other inmates will have time to challenge Ohio's procedures and they might have different results in court," she said.

Denno said both Ohio's one-drug method and the backup plan -- a muscular injection if a suitable vein can't be found -- do not match what the U.S. Supreme Court has said in an earlier Kentucky case is acceptable for capital punishment. Neither of Ohio's methods had been tested on humans.

Biros' attorneys asked a federal judge last week for a stay of execution, arguing too little is known about Ohio's new procedures and that other inherit problems, such as training for the execution team to handle IV lines, had not been addressed.

The judge on Monday denied Biros' request but signaled that he would have liked to have had more evidence and time to consider the case. An appeals court and the U.S. Supreme Court also declined to intervene, though Biros' execution was delayed by one hour while Ohio waited to hear from the high court.

Richard Dieter of the Death Penalty Information Center said Ohio seemed to be in a race to use its new procedure before anyone could really study it.

"I still think there are different opinions in the medical field on whether this is a wise choice but Ohio has gone into this very rapidly with only one side presented, the side of the Ohio Department of Correction," he said.

Dieter said Tennessee, Florida and California are three states that have considered using the one-drug method but decided against it. And no state has seriously considered a muscular injection, except Ohio.

The Biros execution wasn't flawless. The execution team, as it has in previous executions, struggled to insert shunts into Biros' arms.

But Ohio Department of Rehabilitation and Correction director Terry Collins defended the execution team and asserted the process met his expectations.