That's the title of Adam Ellick's and Adam Liptak's article in today's New York Times. LINK Judge James Burge's ruling is here.
Ohio must stop using a common combination of three chemicals to execute condemned inmates because they may produce excruciating pain, a state court judge there ruled Tuesday.
Then, in what legal experts said was a first, the judge instead ordered the state to start using a single large dose of barbiturate, common in animal euthanasia.
The decision is an exception to recent judicial trends in the wake of the United States Supreme Court’s decision in April in Baze v. Rees, which upheld Kentucky’s lethal injection protocol, similar to the one used in Ohio.
There have been five executions — two in Georgia and one each in Mississippi, South Carolina and Virginia — since Baze ended a de facto seven-month moratorium. And Texas is to resume executions on Wednesday.
The Texas Court of Criminal Appeals issued rulings Monday that rejected challenges from five death row inmates to lethal injections there, which also rely on the three-chemical cocktail. Karl Chamberlain, who raped and murdered a 30-year-old woman in 1991, is scheduled to be executed on Wednesday.
The Baze decision did not foreclose all challenges to lethal injections under the Eighth Amendment, which bars cruel and unusual punishment. But it said challengers must show a demonstrated risk of severe pain along with a feasible alternative that would significantly reduce that risk.
The Ohio judge, James M. Burge of the Lorain County Court of Common Pleas in Elyria, appeared to concede that a constitutional challenge to the Ohio protocol would fail under Baze. Judge Burge based his decision instead on an Ohio law requiring that lethal injections use “a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”
Baze, Judge Burge wrote, said the Constitution did not require the avoidance of all risk of pain. The Ohio law, by contrast, he said, “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful.”
"Ohio lethal injection executions unconstitutional, Lorain County Common Pleas Judge James Burge rules," is the headline of the Cleveland Plain Dealer's report, written by Karen Farkas
It's not known if Ohio will follow the ruling, which includes removing the phrase "or combination of drugs" from state law. Burge ruled in the cases of Ruben Rivera and Ronald McCloud, who are charged with aggravated murder. It was the first time in the United States that the lethal injection issue was reviewed before a trial.
Their attorney, Jeffrey Gamso, legal director of the American Civil Liberties Union of Ohio, hopes the ruling has a wide-ranging effect.
"We had hoped he would have taken death off the table for these guys, and that is disappointing," Gamso said.
But Gamso was pleased Burge ruled against the combination of drugs currently used to execute people in Ohio and elsewhere.
"We have been fighting from one end of the U.S. to the other about this set of drugs," he said.
The Ohio attorney general's office, the department of corrections and the Lorain County prosecutor's office are reviewing the decision to determine the ramifications of Burge's order and how to respond, officials said.
In the Elyria Chronicle-Telegram, Brad Dicken reports, "Burge executes changes to lethal injection."
Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., called Burge’s ruling “groundbreaking.”
He said that while the concept of using only a single drug for executions has been debated, Burge is the first to order its use.
And he won’t be the last, he said.
“This is probably the first salvo in a war over lethal injection in Ohio,” he said.
Ty Alper, associate director of the Death Penalty Clinic at the University of California at Berkeley School of Law, examined single-drug lethal injections in a paper set to be published later this year comparing lethal injection and animal euthanasia.
While the three-drug cocktail may appear to offer a peaceful death to witnesses because the condemned is paralyzed, there’s no way to know for certain if there is suffering, Alper said.
Sedatives used when euthanizing animals of about the same weight and size of humans sometimes cause twitching as the animal dies, but the animal feels nothing, he said. That twitching may be unsettling to onlookers.
“The question is whether we want to risk an execution being botched just so the people watching an execution are spared seeing the body’s natural reaction to death,” said Alper, who opposes the death penalty.
In the Lorain Morning Journal Matt Suman reports, "Burge rules Ohio's method of lethal injection illegal."
Burge also said yesterday that he denied a request from Gamso to reopen the hearing to receive testimony from the three people who carry out executions in Ohio.
The Bucyrus Telegraph Forum carries the AP dispatch, "Ohio judge says state must change lethal injection law."
In an interview in his chambers, Burge said his ruling applies only to the two inmates who challenged the procedure in his court and is likely not appealable unless one of the men gets sentenced to death.
He doubted the ruling would have a direct effect on executions in Ohio unless it influences the Legislature to change the wording of the law concerning lethal injection.
He did say, however, that current death row inmates may be able to use the decision to support motions that seek to halt executions because they may be drawn out and painful.
Gov. Ted Strickland, a Democrat who supports the death penalty, said he hadn’t had a chance to discuss the ruling with his top legal adviser and couldn’t comment on its implications.
Deborah Denno's reaction to the ruling is here. Yesterday's initial post, with a link to earlier coverage of the Ohio case, is here.
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