Bettering the Instruction

Here's what we know.

The Great State of Ohio hasn't executed anyone since Jason Getsey on August 18. (They tried to kill Romell Broom on September 15, of course, but you know how that didn't work out.) It's frustrating. You know, they had these killings scheduled like clockwork, one a month, and then there's some grotesque failure and the machinery grinds to a halt. Now there was this short-term break.

Broom would get to litigate whether they can try again for him. And Governor Ted Strickland and DRC Director Terry Collins decided that Ohio needed to reconsider. I mean, what if we can't manage to kill the next guy? Or the one after? So Governor Ted kicked Lawrence Reynolds and Darryl Durr got back from October and November to March and April. And then there was Ken Biros.

He was scheduled for December, and Ted very specifically did not extend his date. And pretty much indicated he would not. But Biros was in a peculiar position. He was the leading plaintiff in Ohio's lethal injection litigation. His question was simple: Do we kill people here in accord with the commands of the Eighth Amendment to the Constitution? The one that prohibits "cruel and unusual punishments."

He'd been litigating that question for three years. He had a hearing in March. And another was scheduled for November. But that hearding got delayed until July 2010. The case was, as it had been, before Judge Frost. And Frost gave Biros got a stay. Maybe it was Abdullah Sharif Kazim Mahdi, scheduled for January, who'd be the test of what Doug Berman called a "mini-moratorium."

Ted and Terry indicated that Ohio was looking into some new killing ideas. Maybe injections into bone marrow. Maybe one drug. Everything, they said, was on the table. Surely this would take time, planning, then practice. Who knew how long this would drag out?

Except that Ted had made clear: Biros would be killed in December. And Ted, it seems, wouldn't go back on that promise.

On November 13, Ohio announced a new killing plan. Untried. Not yet in a protocol. And a back-up plan that nobody had ever even considerred before. Neither had been done on people. Either would be an experiment. And oh, yeah, all would be in place for Biros on December 8.

Except that there was that pesky stay from the federal court.

Judge Frost had said he might lift it if there was a new plan. Now there was a plan. But the judge didn't immediately lift it. So the State asked the court of appeals to lift it. And here's where we are.

It now gets messy with legal language. When Frost issued the stay, the state specifically asked him not to make that stay an injunction. He agreed. there's no injunction. Just a scheduling order for discovery and motions and then a hearing. And a stay so that Biros will still be alive when the judge rules.

And the State appealed. It isn't objecting to the discovery or the motions per se. It just wants the injunction lifted so it can kill Biros and make the whole thing moot.

But wait, you say (if you've been paying attention), there is no injunction to lift. The state didn't want one. Exactly.

There's part one. The state wants the court of appeals to lift an injunction so that it can kill Biros, but at the state's urging, there is no injuction. Except there has to be, or the court of appeals will have no jurisdiction, no authority to order the killing to go forward.

What to do? Easy. The state says there is an injunction. As it ignores the fact that it got exactly what it asked for - no injunction, and therefore no right to appeal = so it pretends that the injunction was issued over its objection.

And that it will suffer irrepearable harm if it has to defer murdering Ken Biros. Which is just stupid.

And that the court of appeals must act ASAP, because, after all, it's almost killin' time.

Friday, Biros responded with his own filing in the court of appeals. He asked the court to dismiss the state's appeal and, in any case, to deny its request to order Judge Frost to dismiss the case.

Doug Berman linked to an AP story leading off with this summary of Biros's motion.

The state's new lethal-injection plan is so untested that it would amount to human experimentation if used for the first time in December

It says that, certainly. And it's true. But that just skims the surface. Here is what Biros says, and it's worth quoting at length (with a footnote and citations to the record omitted without indication.)

When mootness is premised on a defendant’s claim that it has voluntarily ceased and/or corrected the allegedly unconstitutional acts or policies at issue in the litigation, the federal court must necessarily address and determine a number of heavily fact-based and credibility-dependent questions including, but not limited to: (1) What specifically are the voluntary actions defendant claims to have adopted, how will they be applied, and how if at all do they address what is being challenged in the litigation? (2) Do the defendant’s alleged voluntary actions address all of the plaintiff’s claims, or only some of them? (3) Is it “absolutely clear,” after the voluntary conduct is thoroughly understood as to its application and scope, “that the allegedly wrongful behavior could not reasonably be expected to recur?” (4) Does the voluntary action “completely and irrevocably” address the alleged violations at issue in the litigation?

All of these questions are thoroughly undeveloped and unresolved in this case. All that Biros knows about the alleged new protocol is what appears in defendant Terry Collins’s two-page affidavit filed in the district court on November 13, 2009. That too is all this Court knows, and all the district court knows. There has been no discovery on these supposed “voluntary” changes, why they were selected, what the experts say about them, whether the execution team has practiced with them, whether the team is comfortable using them, how they will be used, whether they will work, and on and on and on.

Moreover, the Collins affidavit raises far more questions than it answers. The defendants are supposedly “discontinu[ing] the use of pancuronium bromide and potassium chloride in the execution process,” and will now evidently be using either “the intravenous administration of 5 grams of thiopental sodium” or “the intramuscular administration of 10 milligrams (‘mg’) of midazolam and 40 mg of hydromorphone.” But how these new procedures will be applied is hardly clear from Collins’s short affidavit, and the promised new protocol containing them has evidently not even been written yet. And, if it has been written, it still isn’t part of the record before this Court or the district court. Biros has never seen this new protocol.

Yet, the defendants supposedly plan to use the new protocol to execute Biros in 18 days! No court can even begin to determine the mootness issue, in any constitutionally legitimate way, until the defendants have first actually adopted and published their projected new protocol.

Aside from failing to provide the Court or the plaintiffs with the projected new execution protocol, defendants’ professed “voluntary” changes utterly fail to address two of the more obvious constitutional deficiencies with their lethal injection procedures: (1) the continued use of untrained and insufficiently competent medical technicians to make the insertions of the intravenous (“IV”) catheters into the inmate’s veins; and (2) the continued failure to place any reasonable and humane limitations, indeed any limitations, on how long these incompetent technicians will be permitted to poke and stick the inmate before they (or their defendant-supervisors) will finally acknowledge that they have gone too far and must stop. In other words, the purported “voluntary” changes do not address the prolonged venous access problems that plagued Romell Broom’s execution on September 15, 2009, and which are detailed at length in the record before the district court and in the motion for summary judgment that Biros (and the other plaintiffs) have filed in the district court.

Another totally undeveloped factual issue relevant to mootness is how long will it take for Biros to die from the dose of sodium thiopental contemplated by the alleged “voluntary” changes? Will it be “quick and painless” as unambiguously required by Ohio Rev. Code § 2949.22(A)? This Court shouldn’t guess about these matters.

The use of “midazolam” in combination with “40 mg of hydromorphone” is also a total mystery as to how it will impact Biros or any other inmate. Will these drugs bring about death? Will such a death be painless? Will such a death be quick? Will it take many minutes or many hours before death occurs? Will these drugs allow for a dignified death, or will the death be ugly and undignified as the inmate vomits all over himself and/or convulses with hallucinations caused by the powerful opiate? If administration of sodium thiopental begins but cannot be maintained on an inmate because of IV access issues (see, e.g., Joseph Clark), how does a human body react when subjected to large doses of both sodium thiopental and hydromorphone? There is no evidence presented by the defendants on any of these important issues. This Court shouldn’t guess about them. There is nothing in the record from which it could make a guess in any event. These issues are totally undeveloped.

Also undeveloped is the question of why the defendants have elected to use a massive injection of “midazolam” and “hydromorphone” as a “back-up” in the event they encounter problems with peripheral IV access to the inmate’s circulatory system. Have they been provided with any evidence that the usage of these drugs in an execution will result in a humane death? If so, where is that evidence? Has it been tested? Is it reliable? Is it credible? Is the execution team competent to administer these drugs and to monitor their course and effects? Have they received any training on these drugs? When and where?

Surely if the defendants had chosen as a “back-up” the use of a gunshot to the inmate’s head, there would be no legitimate basis for alleging that such a “voluntary” change moots Biros’s Eighth and Fourteenth Amendment claims. Yet, there is nothing in the record on which this Court can make any legitimate determination as to whether the “back-up” they have selected is as or more constitutionally problematic than a gunshot to the head or any other hypothetical back-up.

On this undeveloped record, all that can be said about defendants’ proposed use of “midazolam” and “hydromorphone” is that it is human experimentation, pure and simple. The constitution should never tolerate human experimentation. The defendants’ invitation that this Court should nevertheless tolerate human experimentation -- and that the Court should do so on the basis of a record whose absence of any factual development is explained solely by the fact that the defendants are so impatient in their quest to kill Biros that they are unwilling to allow any time for these and other questions to be answered -- should be as offensive to this Court as it is to Biros.

And, of course, that's the gist of it.

They cooked up a scheme that's untried, to be implemented by a team of people who cannot competently administer a scheme they've been doing for years. They really don't know if it will work or how. But they don't care. Dead, after all, is dead. The only truly botched execution, they'd tell you, was Broom's because he didn't die. Nothing else really matters.

Let's match torments, shall we. The condemned killed in a horrible way. Let us match it. It is the law of lex talionis. Hammurabi meant it literally. It's described in Exodus, though apparently not meant literally.

. . . [T]hou shalt give life for life,
Eye for eye, tooth for tooth, hand for hand, foot for foot,
Burning for burning, wound for wound, stripe for stripe.

And then there's Shylock.

. . . I am a Jew. Hath
not a Jew eyes? hath not a Jew hands, organs,
dimensions, senses, affections, passions? fed with
the same food, hurt with the same weapons, subject
to the same diseases, healed by the same means,
warmed and cooled by the same winter and summer, as
a Christian is? If you prick us, do we not bleed?
if you tickle us, do we not laugh? if you poison
us, do we not die? and if you wrong us, shall we not
revenge? If we are like you in the rest, we will
resemble you in that. If a Jew wrong a Christian,
what is his humility? Revenge. If a Christian
wrong a Jew, what should his sufferance be by
Christian example? Why, revenge. The villany you
teach me, I will execute, and it shall go hard but I
will better the instruction.

Is this our model?

We deny it, of course, and are (at least institutionally) repulsed by the idea. Ohio does not avenge that way. We don't match horror for horror. We are better than that. And yet. And yet.

Because it comes back to this. Nobody knows how these new killing methods, if they really intend to use them, will work. Nobody's practiced. Nobody's skilled at them because nobody's ever done them. It is experiment. Cross our fingers and hope for the best. But why?

Because it must be done now. At once. No time for courts or evaluation or experts to weigh in.

But it will be fine, because we can trust them, because they're track record is so good. Because they mean well (if you can mean well while killing someone). And besides, darn it, Biros must die.

The question is what happens.

The law is pretty clear that the court of appeals has no authority to vacate the stay. The state's appeal should be dismissed because it's just not properly before the court. And if it is properly before the court, it should be denied.

Will they do it? I've said before that I don't believe in the Law. It doesn't work in the textbook like way they teach it. That's a sham at least some of the time. On the other hand, sometimes the courts do what they should.

So here's what we've got. Ohio, for reasons of its own, has concluded Ken Biros must die. Now. The only way to kill him is with a new, untried, untested technique performed by people who can't master what they've done a couple of dozen times already. So be it.

Ohio claims that Judge Frost has no right to keep a stay of Biros' execution in place. Fearing that Frost won't lift the stay, Ohio asks the court of appeals to lift it. The court has no authority to lift it. But it might anyway.

Who's going to tell the truth? Who'll act on principle? Who'll watch the watchers?

Honesty? Integrity? You be the judge.

Ken Biros can only wait.