It's not much of a surprise to anyone who's been paying attention. Every state that kills is facing, has faced, or is soon to be facing a variation on that theme. But now it's our blessed plot. What to do?
If you've been seriously worried about this, you can relax. The state's got a new plan brewing. They've declared that it will be in place by October 4 which is almost 6 weeks before Phillips gets to be tied down. Six weeks, of course, is plenty of time for everyone to file new pleadings and motions before Judge Frost in In re: Ohio Execution Protocol Litigation. In fact, it's in the works.
Monday, the judge put a halt to consideration of 40 or so (I may have counted wrong; it doesn't matter) of the motions in the case and announced that after the state actually decides how to kill Phillips (and the others), he'll have a status conference and decide whether to decide those motions or allow everyone to file new ones. Maybe even new complaints.
See, new protocols mean new issues. They raise again the concerns over Ohio's incompetence at killing and over its slapdash approach to obeying its own rules.
And, of course, they'll likely be cooking up some method of execution that nobody's ever before tried.
Unless they decide to rewrite the statute, they have to kill by injection. And it has to work "quickly and painlessly." And whatever they do - even if it's rewriting the statute to allow execution by, say, drawing and quartering or burning at the stake - they won't actually get to do it unless Frost signs off on it.
We have, of course, been down this road before as Ohio has revised and rewritten, changed drugs and quantities, added safeguards, issued pinky swears. And always motions and rulings and more motions.
We've killed 51 men now, beginning with Wilford Berry in 1999. There are, as I write this, 13 more with execution dates. Yet we've had reprieves and stays (and they still haven't figured out what to do with Rommell Broom, the man they couldn't kill). As I've said repeatedly in one fashion or another,
What's the point?Hitler and Stalin had their ways. Whitey Bulger had his. I'm at a seminar this week with a couple of hundred capital defense lawyers who sure as hell know folks who've found ways to kill (not the factually innocent ones, of course, and there are more than a handful of them) that we don't like and won't emulate.
This business of socially acceptable killing, forcing people against their will to go gently into that good night, but doing it in ways that leave the killers feeling clean and those who order the killings cleansed.
Fred Leuchter, the Ron Popeil of execution technology, holocaust denier, and unlicensed, untrained, but self-proclaimed engineer thought, like Dr. Guillotine and Jack Kevokian, announced that he had better ways to kill. But it turns out . . . .
Turns out it's tougher than we'd imagined
And it keeps getting harder what with those damned evolving standards of decency that mark the progress of a maturing society.
Of course, we could just call a halt.
Ohio needs a new method. This might seem a propitious time.