Thursday, December 2, 2010

BECAUSE WE DON'T WANNA: The Supreme Court of Ohio Edition

Ubi jus ibi remedium.
Roughly translated from the Latin we get a familiar legal maxim.
There is no right without a remedy.
The idea is that if you're denied your rights, you can sue to enforce them or to receive recompense or something.  If you can't sue for one or the other form of remedy, the ostensible rights were not rights at all.  They were illusory.
Which is all about lethal injection in Ohio.
(You know, when I started this blawg, it really wasn't my intention to devote so much time to death penalty related things.  Sure, I knew I'd talk about it a lot, but I never imagined it would be this much.)
A bit of background.
Ohio Revised Code Section 2949.22 sets the actual rules for how Ohio kills people.  For our purposes, subsection A is what's relevant.
Except as provided in division (C) of this section, a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death. The application of the drug or combination of drugs shall be continued until the person is dead. The warden of the correctional institution in which the sentence is to be executed or another person selected by the director of rehabilitation and correction shall ensure that the death sentence is executed.
While the legislature has tinkered with the mechanism of killing over the years (the chair, then the chair as default but lethal injection at the choice of the condemned, then just lethal injection), the courts have basically ignored that statute.  After lethal injection litigation began heating up, the focus, in Ohio as elsewhere, pretty much remained on the Cruel and Unusual Punishment Clause of the 8th Amendment.  And the statute was mostly ignored.  (I'm oversimplifying, but it doesn't change anything here.) 
More precisely, it was mostly ignored until a trial court judge with a death penalty case in front of him decided that it meant what it said:  Death by lethal injection had to be effected "quickly and painlessly."  And our execution method, the judge agreed, doesn't go nearly far enough to ensure that.
No other state has a painlessness requirement, but Ohio does.  And since there is no right without a remedy (see how I circle back to where I started), and since Ohio statutes confer that right to a painless lethal-injection death, well, then Ohio's death penalty procedures were unconstitutional, and the judge ordered them changed.  (Story here; opinion here.)
Nothing much ever came of that case.  The state was horrified and appealed.  We need an immediate ruling so we don't kill in violation, they said.  No immediate ruling, but they killed in violation anyway.  Eventually, the court of appeals said that the judge hadn't really done anything final so it didn't count.  And in time, Ohio changed its killing method to what the judge had ordered them to do.
And the beat goes on.
Though really, none of that matters much for the immediate purpose of this post.
But 2949.22 is still out there requiring quick and painless murder.  And the 8th Amendment still prohibits cruel and unusual punishment.  And the question remains:  Does Ohio comply?
The standard way of raising the question has been by a civil rights claim (the state will be violating my constitutional rights, the condemned plaintiff says, by killing me in a cruel and painful fashion) under Section 1983 of Title 42 of the US Code.  It hasn't succeeded in Ohio, but that's the normal path.  Or it was until a couple of years ago.
That was when the 6th Circuit announced that it wanted to examine lethal injection in the context of a habeas corpus petition and ordered a district judge to gather evidence on Ohio's killing method.  (Bear with me; I'm getting to the point.)
It's at that point that another district judge called a halt.
See, one of the principles of habeas is that you have to run through state remedies before you can turn to federal ones.  The judge wanted to know how the petitioner in his habeas case, Michael Dean Scott, was supposed to raise a lethal injection claim under Ohio law.   Pre-trial as part of the criminal case, which is what we did in the case I litigated?  Could be. Direct appeal? Maybe, but where was the record?  State post-conviction?  Perhaps.  Declaratory judgment action?  Possibly.  Maybe mandamus?  Why not?  Who the hell knew?
Ah, so the judge said the Ohio Supreme Court should decide just how the constitutional and statutory questions regarding lethal injection should be raised in Ohio courts.
Because there just had to be a way.  You know, because the 8th Amendment and 2949.22 both gave the condemned guy some guarantees, some rights.
And there can't be a right without a remedy.
Ubi jus ibi remedium.
Unless, of course, you're in an Ohio court.
This morning, in Scott v. Houk, the Ohio Supreme Court said that there is no Ohio mechanism for testing the constitutionality or statutory propriety of Ohio's execution system.  Oh, if they want to kill you, you've got a right to have it be by a quick and painless execution that isn't cruel and unusual.  The court acknowledged that.  You just have no mechanism in Ohio to vindicate that right.
The vote was 5-2, though there were 4 opinions (which is a whole lot for the Ohio Supremes).
That won't end things, of course.
You can get relief, if you can, in federal court.  But don't come knocking on our door, they said.  Enough is enough, said Justice Evelyn Lundberg Stratton
At some point, the victims’ families and the state deserve finality in judgment.
Now, I don't mean to be petty about this, and I'm sure she worked hard at crafting that sentence, but whether Ohio law does or does not provide a means of litigating Ohio's lethal injection system does nothing to promote "finality in judgment."  The questions are still out there and will still be resolved.  It's just that the federal courts will be the ones to decide whether Ohio obeys the Constitution (OK, they always got to do that) and to say whether Ohio obeys Ohio law.
So maybe there's a remedy.  After all, there's a right.  Just don't look to Ohio to provide it.



    Lethal injection has taught us,
    We need A Proposal, Modest,
    If you need someone dead,
    Just cut off his head,
    We should use the machine France brought us.

  2. You want I should agitate for a strike in Ohio?

    I mean the whole reason we have Supreme Courts with all the pomp and ceremony is so that they don't punt on important questions. Like life or death ones.

    See what I meant about low character?

  3. It's not a life or death question. It's a question about how to go about deciding how to kill, which is pretty attenuated from that. And it's about Ohio law. And, by the way, they may have been right. There may well be no procedure under Ohio law for an as-applied challenge to Ohio's execution methodology.

    You want to strike after every silly decision?

  4. I didn't say I wanted to. I asked if you wanted me to agitate for it. I take it the answer is no, which is fine. In the future I'm not going to suggest any action before at least one local counsel asks me. The Keller thing didn't go over too well, maybe partly for that reason.