New Execution Method Is Used in Ohio

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

Media Source

By IAN URBINA

Saying he was now “paroled to my Father in heaven,” a convicted killer in Ohio on Tuesday became the first person in the United States to be executed with a one-drug intravenous lethal injection.

The new method, which involved a large dose of anesthetic, akin to how animals are euthanized, has been hailed by most experts as painless and an improvement over the three-drug cocktail used in all other states that employ lethal injection, but it is unlikely to settle the debate over the death penalty.

While praising the shift to a single drug, death penalty opponents argue that Ohio’s new method, and specifically its backup plan of using intramuscular injection if the authorities are unable to find a usable vein, has not been properly vetted by legal and medical experts. Since it had never been tried on humans before, they contend it is the equivalent of human experimentation.

But the United States Supreme Court refused to intervene on Tuesday morning, and the procedure went largely as planned.

The inmate, Kenneth Biros, 51, died at 11:47 a.m. Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, said the drug took about 10 minutes to take effect, roughly the same length of time as the three-drug cocktail. It took about 30 minutes for the execution team to find a usable vein, after having inserted the needle several times into each arm.

Ohio adopted the one-drug method last month after a failed execution attempt in September in which the authorities spent more than two hours trying to find a usable vein in Romell Broom, 53, who was convicted of the 1984 abduction, rape and murder of a 14-year-old girl.

Mr. Biros was convicted of sexually assaulting and killing Tami Engstrom, 22, near Warren, in northeastern Ohio, in 1991 after offering to drive her home from a bar, then scattering her body parts in Ohio and Pennsylvania. She had been stabbed more than 90 times. Mr. Biros acknowledged killing her but said it was done during a drunken rage.

Ms. Engstrom’s mother, brother and sister attended the execution, as did one of Mr. Biros’s lawyers, John Parker, and two of Mr. Biros’s friends. Thomas Altiere, the sheriff for Trumbull County, where the murder occurred, also watched the execution.

As Ms. Engstrom’s family members entered the prison on Tuesday, a reporter asked if they were ready. “We’ve been ready for 18 years,” one of the Engstroms said, according to The Columbus Dispatch.

Shortly before the execution, Mr. Biros gave his personal belongings — seven CDs, an address book, a portable CD player, a rosary and a notebook — to his siblings.

“I’m sorry from the bottom of my heart,” he said after thanking his family and friends for their support.

It was the second trip to the holding cell for Mr. Biros, who spent a day and night there in March 2007 as his lawyers scrambled to halt his execution. The Supreme Court intervened that time because of challenges involving the three-drug cocktail.

Opponents of the death penalty have long argued that using a single drug is more humane than the three-drug cocktail, which involves a short-acting barbiturate to render the inmate unconscious, followed by a paralytic and then a chemical to stop the heart.

Still, death penalty opponents criticized the state for not allowing more time for closer scrutiny of the new protocol.

“The key is due process,” said Richard C. Dieter, executive director of the Death Penalty Information Center in Washington. He said that, for example, when New York introduced the electric chair in 1890, the case went to the Supreme Court, which decided that the punishment might be more humane than hanging.

“The court held that death row prisoner received due process because the New York Legislature had considered the punishment method carefully,” Mr. Dieter added. “In this case, however, everyone has taken the Ohio Department of Corrections at their word, without an adversarial debate.”

But Kent Scheidegger, the legal director of the Criminal Justice Legal Foundation in Sacramento, which supports the death penalty, said he doubted that the state’s new protocol would merit a Supreme Court review.

Mr. Scheidegger also dismissed the criticism that the new approach was untested on humans. “What kind of test do they expect?” he said. “A controlled study with volunteers? Not likely.”

Deborah W. Denno, a Fordham University law professor who is an expert on the death penalty and lethal injection, said she believed that the constitutionality of the new state protocol could be challenged if it was found not to be “substantially similar” to the three-drug method used by the State of Kentucky, which the court approved last year.

A federal judge in Ohio disagreed, however, and on Monday he denied a request from Mr. Biros to delay his execution until lawyers could conduct a review of the new protocol.

On Monday night, Mr. Biros’s lawyers filed an emergency request with the Supreme Court asking for his execution to be stopped. That was rejected.

Mr. Biros was moved to the holding area for death row inmates about 15 feet from the death chamber at the Southern Ohio Correctional Facility in Lucasville on Monday morning, prison officials said.

In the afternoon, he had a snack of peanut butter and jelly sandwiches. At night, he was to be served a meal of cheese pizza, onion rings, fried mushrooms, Doritos, French onion dip, blueberry ice cream, cherry pie and Dr Pepper, they said.

On Tuesday, Mr. Biros received communion and seemed calm as he awaited his fate, prison officials said.