New lethal injection policies put Ohio at center of legal and ethical debate over executions

Columbus -- Death row inmates and advocates on both sides of the capital punishment debate across the country have had their eyes on Ohio since the recent announcement that this state will pioneer the use of a single drug to execute inmates.

Earlier this month, Ohio prison officials announced they will abandon the three-drug cocktail for lethal injection in favor of a single injection of a massive dose of barbiturates. If the execution team is unable to find a suitable vein, the drug will be injected into an inmate's chest muscle.

Both procedures are unprecedented in modern American execution practices, and the new blueprint has thrust Ohio into the center of the raging ethical and legal debates that swirl around capital punishment.

"It could be a significant turning point in the direction of the death penalty in this country," said Ohio State University Law School professor Douglas Berman, an expert on criminal sentencing and the death penalty. "It's already a turning point that Ohio is willing to try something new, but the real question is, will the courts be comfortable with Ohio's efforts? Will the better mousetrap, if you will, prove to be successful in Ohio?"

The new approach comes after a badly botched execution on Sept. 14 when the execution team failed to find a usable vein in the arm of inmate Romell Broom (pictured, lef), who raped and killed 14-year-old Tryna Middleton of East Cleveland in 1984. Similar problems haunted the execution of killers Joseph Clark in 2006 and Chris Newton in 2007, although officials were eventually able to open veins and execute the men after lengthy delays.

The three-drug method also was the source of several lawsuits claiming Ohio's procedures were cruel and unusual because inmates could feel pain while being sedated, paralyzed and killed by the drugs.

Jeff Gamso, a defense attorney who handles death penalty cases for the American Civil Liberties Union of Ohio, which opposes the death penalty, said the one-drug method makes Ohio unique, but doesn't clear up whether this is a more humane way to kill people.

"Nobody really knows because nobody had ever done this before," he said. "Just because you gave up a bad idea doesn't mean you replaced it with a good idea."

However, Ty Alper, associate director of the Death Penalty Clinic at the University of California-Berkeley, which serves as a resource for defense attorneys suing states over lethal injection methods, said the one-drug method should cause less pain to the victim than the three-drug cocktail.

"I think this is something that is pretty well accepted," he said. "It's very similar to the way that animals are euthanized -- there's been a lot of testimony about it, and the effects of the anesthetic are pretty well known."

The first Ohio inmate to be executed using the single-drug method could be Kenneth Biros (pictured, right), a killer from the Youngstown area who has a Dec. 8 execution date. A federal judge has placed a hold on Biros' execution based on his argument that the three-drug cocktail could have caused severe pain in violation of his constitutional rights barring cruel and unusual punishment.

But the state's new procedures open the door for Biros to become the 33rd inmate executed in Ohio since the death penalty was resumed in the Buckeye State in 1999.

The 6th U.S. Circuit Court of Appeals gave Biros' legal team until Friday to present arguments for why his lawsuit shouldn't be dismissed in the wake of the changes announced by the state. Ohio Attorney General Richard Cordray's office has argued in court papers that the new method "renders moot" the cruel and unusual punishment claim from Biros.

Biros killed 22-year-old Tami Engstrom near Warren in 1991 after he offered to drive her home from a bar.

Law professor Berman said the state would like to get Biros executed with the single dose of painkillers to return to business as usual long before Broom, who sparked international attention with his botched execution, is back in the death chamber.

"My sense is they would like to make Biros -- for a lack of a better term -- the guinea pig for this new method," Berman said. "But this is brand new territory. We've never before seen a state that because of botched executions decides to change its methods midstream."

If Ohio's one-drug method does work uneventfully in executing prisoners, it could remove the excessive pain argument from the arsenal of Ohio defense attorneys. However, the new procedures also open up new grounds for legal challenges, experts say.

For example, Alper said that the state's backup plan for injecting the drug directly into the chest muscle if a suitable vein can't be found is a complete unknown and thus a potentially potent legal issue.

"It will depend on the backup plan and whether that is something the courts will accept," he said. "There are a lot of open questions about injecting the drug intramuscularly as opposed to intravenously. There are fewer open questions about one-drug protocol."

Amanda Wurst, a spokeswoman for Gov. Ted Strickland, said the Democratic governor is comfortable with the new procedures and thinks that executions should proceed again in the state.

But most doctors will probably still have the same ethical misgivings with the process even if the procedures have been altered, said Stuart Youngner, chairman of the Bioethics Department at Case Western Reserve University School of Medicine.

"Is this better and more ethical because the person will be put to death more painlessly?" Youngner asked. "I have no idea if that is true and, frankly, I'm skeptical. It's harder to kill people than you think that it is."

Youngner said Dutch doctors have extensively studied the issue for the country's euthanasia laws and concluded the three-drug cocktail is the best. "If this is such a great idea then why is Ohio the only one doing it?" he asked. "The Dutch don't do it and they are the world's foremost experts on it."

Source: cleveland.com, November 23, 2009