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Ohio Court Finds Three-Drug Execution Protocol Violates Prisoners’ State Rights

Ohio Court Finds Three-Drug Execution Protocol Violates Prisoners’ State Rights

On June 10, 2008, Judge James J. Burge of the Lorain County Court of Common Pleas has held that the three-drug protocol used by the Ohio Department of Rehabilitation and Correction (DORC) to execute prisoners violates their right under Ohio law “to expect and to suffer a painless execution.”

The ruling came upon motions filed by Ruben O. Rivera and Ronald McCloud, who face the imposition of the death penalty upon their convictions for murder. Over two days, the Court held hearings that allowed experts to testify for each side.

The three-drug lethal injection protocol includes sodium thiopental, pancuronium bromide and potassium chloride. The Court said the issue of whether an execution is painless arises from the use of pancuronium bromide, which makes a person unable to breath, move or communicate, yet “does not affect our ability to think, or to feel, or to hear, or anything, any of the senses, or any of our intellectual processes, or consciousness,” stated defense expert Mark Heath. Thus, the Court held that the drug would “mask the body’s reaction to pain.”

It then found that potassium chloride causes excruciating pain as it travels up the arms and through the chest if the person is not sufficiently anesthetized with sodium thiopental.
The parties agreed that even in a clinical setting, mistakes are made in the delivery of anesthesia. The Court also found that circumstantial evidence exists that some executed prisoners have suffered a painful death due to a flawed lethal injection; “however, the occurrence of suffering cannot be known, as post-execution debriefing of the condemned person is not possible.”

The Court held that under R.C. 2949.22, a condemned prisoner has the statutory right “to execution without pain, and to an expectation that his execution will be painless.” The statute further requires that death will occur “quickly.” The Court distinguished this right as a greater protection than required under the Eighth Amendment to the U.S. Constitution.

Finding that the three-drug protocol failed to afford condemned prisoners the state rights to which they were entitled, the Court ordered that DORC must utilize “a single massive dose of sodium thiopental or another barbiturate or narcotic drug [that] will cause certain death, reasonably quickly.” See: Ohio v. Rivera, Lorain County, Ohio Court of Common Pleas, Case No. 04CR065940 (June 10, 2008).

On April 16, 2008, the U.S. Supreme Court held that a similar three-drug lethal injection protocol used by the Kentucky DOC did not constitute cruel and unusual punishment under the Eighth Amendment, and thus was constitutional. See: Baze v. Rees, 128 S.Ct. 1520 (2008). See: PLN, December, 2008.

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Related legal case

Ohio v. Rivera,