Thursday, May 21, 2009


Last year, in a case I litigated, an Ohio judge determined that Ohio's execution protocol violated Ohio's law requiring executions to be conducted "quickly and painlessly." We use three drugs to kill. Two of them serve no medical purpose but increase the chance that the condemned will suffer horrific agony and torturous pain. Judge Burge held that use of the three drugs created an unnecessary risk of extraordinary suffering in violation of the condemned person's state-granted right to a painless death. He ordered the state to change its protocol and kill by the use of a single, massive dose of barbiturate. (Story here; opinion here.)

The state has carried out two executions since Burge ruled, both times ignoring his order.

Last month, in a different case, a federal judge issued a 159 page opinion detailing a week's worth of evidence on how Ohio kills. Testimony before Judge Frost noted the same problems Burge found with the three drugs but also revealed wholesale inadequacy in the qualifications and training of the people who perform the executions. He concluded that "Ohio’s method of execution by lethal injection is a system replete with inherent flaws that raise profound concerns and presents unnecessary risks."

Now, with five executions scheduled in the next four months, Ohio has changed its protocol.
(Newspaper stories here and here and here.) Where before we used three drugs, two of which serve no medical purpose in causing death but significantly increase the odds of causing horrific agony and torturous pain, the new protocol uses the same three drugs. It does make some marginal efforts to deal with some of the other problems Frost found, but they're essentially trivial remedies, designed to make it somewhat less likely that a needlessly risky means of killing will be as horrific as it might when the obvious fix would be to abandon the risk and do what Judge Burge ordered.

Ohio executes more people than any other state outside the south. We know we've botched at least a couple of the killings. We don't seem much to care.

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