Ohio's Perverse First Place

Professor Deborah Denno in The Huffington Post, December 09, 2009

Media Source

Deborah W. Denno
Arthur A. McGivney Professor of Law, Fordham University School of Law
Posted: December 9, 2009 01:00 PM

Ohio's Perverse First Place

Ohio executed Ken Biros by lethal injection yesterday. Having garnered this country's worst record of execution botches, the state also acquired another first place by imposing a method of execution never before used on anyone, anywhere. Mr. Biros died from a lethal dose of a single-drug and he could have died from an even riskier back-up plan -- procedures prompted by Ohio's disastrous attempts to execute another inmate this past September.

Biros's execution was not problem-free. Executioners required a half-hour, and nine unsuccessful attempts, to finally find a vein in which to put an IV catheter. According to one AP reporter, Ohio officials warned him and other witness-journalists that Biros could end up vomiting and convulsing if in fact the backup plan went into effect.

But Biros' flawed execution is hardly the exception. Over the decades, lethal injection has never met its purported goal of humaneness. The three-drug "cocktail" as it is called (bizarrely intimating that inmates die from happily attained hangovers) has been problematic from the start. The first of the three drugs (thiopental), a barbiturate anesthetic, is intended to serve as an execution "aperitif" to induce deep unconsciousness. The second drug (pancuronium bromide) paralyzes all voluntary muscles and causes suffocation. The third drug, potassium chloride, induces irreversible cardiac arrest. Without adequate anesthesia, however, pancuronium can cause excruciating suffering as the inmate slowly suffocates from the drug's effects while paralyzed and unable to cry out. The inmate's agony increases dramatically when executioners inject the third drug (potassium), which creates an intense and unbearable burning. Recent lawsuits have questioned whether pancuronium, which so effectively masks emotions, prevents executioners from assessing whether an inmate might be aware and in torment.

Courts throughout the country became so critical of the three-drug procedure that the United States Supreme Court in 2008 was compelled to review whether a state's lethal injection protocol - Kentucky's - violated the Eighth Amendment's Cruel and Unusual Punishments Clause. In Baze v. Rees, the Court upheld the constitutionality of Kentucky's three-drug procedure because the defendants did not show the combination posed a "substantial" or "objectively intolerable" risk of "serious harm" compared to "known and available alternatives." The Court observed that the proposed alternative method, consisting of a large dose of only the first drug, carried its own risks. And besides, the Court emphasized, no other state had ever used it.

Which brings us back to Ohio's death wish for Mr. Biros. In 2006 and 2007 Ohio prison officials conducted two of the longest executions on record. Then, during Mr. Broom's September 15 execution, an execution team of at least 12 people spent over two hours trying to inject the first drug, pricking a crying and grimacing Mr. Broom more than 18 times. Finally the governor ordered a stop - only the second known time an execution in the United States has ever been halted (the last was in 1946).

But Ohio is not a state willing to give up on executions, as its remarkable record of ineptitude demonstrates. On November 30, Ohio issued a unique, two-part lethal injection protocol for Mr. Biros' execution. In the first part ("Plan A"), executioners were to inject only thiopental, the first of the three drugs typically used in a lethal injection. This "anesthetic-only" protocol represents the first time a state has bowed to the persistent demands of attorneys and human rights activists to eliminate the second two drugs.

If the execution team were to fail at Plan A, Plan B directs the team to inject directly into the inmate's arm or leg muscles an overdose of two drugs never used in any execution in the world. The state's inability to find a suitable vein in Mr. Broom clearly prompted the state to resort to intramuscular injections.

Plan B's problems are vast. Evidence indicates the drugs, hydromorphone and midazolam, will produce a slow, lingering death with the inmate in a state confusion, disorientation, and intense psychological anguish and torment. The nausea-evoking effect of hydromorphone may cause the prisoner to vomit, before or after drifting into unconsciousness.

The lingering death of Plan B violates multiple statutes and guidelines. Ohio's own lethal injection statute requires that death be "quick and painless"; Plan B is probably the slowest execution method ever proposed in the United States. Likewise, Plan B directly contravenes Ohio's veterinary euthanasia laws because the particular drugs and intramuscular method are all prohibited for animals.

Plan B also conflicts with Baze. Ohio has proposed using the same anesthetic-only protocol the Baze Court deemed an inadequate alternative. The Baze Court emphasized that its holding of constitutionality pertained to state lethal injection protocols that are "substantially similar" to Kentucky's, which Ohio's new method is not.

While kudos go to Ohio for eliminating pancuronium and potassium, Ohio's protocol is scarcely an acceptable solution. Biros' execution date was set before his lawyers and experts ever had a chance to fully develop their case. Even the judge who ultimately upheld Ohio's plan made clear that he was not able to review much of the evidence he would liked to have considered. Yet, other inmates will not have the same kinds of constraints. With a fuller record before them, other judges may reach a different result. The nation continues to struggle with the best way to legally kill people - just as some members of the Court in Baze said it would.

Related media quoting Professor Denno on the execution:

The LA Times
The New York Times
The New York Times Blog
The Cleveland Plain Dealer
The Guardian
The Associated Press
Reuters
The Columbus Dispatch