Monday, October 5, 2009

A momentary pause or a real moratorium? Or maybe just a burp.

Lawrence Reynolds won't be murdered on Thursday. Maybe.

You know the back story. Since May 2006, there have been three horribly botched execution efforts in Ohio. Most recently, the State of Ohio's crack execution team worked at it for two hours on September 15 but ultimately failed in its effort to kill Romell Broom. The state planned to try again a week later, but ultimately agreed that it would do nothing until a federal Judge Gregory Frost held hearings at the end of November. (See here and here, for instance.) Among the key questions:
  1. Are Ohio's execution procedures unconstitutionally flawed as written?
  2. Is Ohio really as incompetent as it seems to be?
  3. Regardless of what's in the written protocols, does Ohio's execution process entail a "demonstrated risk of severe pain" sufficient to make the system unconstitutional?
The hearings will explore these questions for Broom and also for Ken Biros (who was going to get a hearing regardless).

The problem is that there are two other men Ohio wants to kill before the hearing occurs. Lawrence Reynolds on October 8 and Darryl Durr on November 10. What about them? Good sense suggests that their killings should be stopped. Even if you think the state should be in the murder business, it's reasonable to say that they should stop killing people until they've determined how to do it properly. But good sense has never had much to do with this.

Reynolds asked the Ohio Supreme Court for a stay. The state opposed the request. The court denied it. (Documents here.) Reynolds asked the 6th Circuit court of appeals for a stay. The state opposed the request. This morning, in a 2-1 decision, the court granted it and ordered Judge Frost to hold a hearing. Presumably, that will be part of the Broom/Biros hearing of November 30.

But don't let's go popping the champagne corks just yet.

As the Columbus Dispatch notes, the state can ask the entire 6th Circuit to review what the panel did. And the state can ask the Supreme Court to reverse the panel decision. Will the state ask? I don't know. What will happen if they do ask? I don't much like my guesses, but the truth is, I don't know.

Guarded hope for Reynolds seems to be the watchword.

Which brings us to Darryl Durr and the other men with execution dates.

Judge Sutton, who voted against stopping the Reynolds killing, noted that granting his motion has a broader consequence:
The last problem with Reynolds’ motion for a stay is that there is no way to grant it
without effectively imposing a moratorium on implementing the death penalty in Ohio.
Sutton found that problematic. I find it encouraging.

One can only hope.


I'm told that the state has asked or is about to ask the Supreme Court to jump in and lift the stay the Sixth Circuit imposed this morning. More news as it develops.

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