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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Ohio execution law upheld

Ohio's death chamber
Ohio's death chamber
Appeals court dismisses death-row challenge

A Cincinnati appeals court Wednesday dismissed challenges to an Ohio law that promises to shield the identities of some of those involved in the execution process, including pharmacies that manufacture the drugs.

In a 2-1 decision, the U.S. 6th Circuit Court of Appeals upheld a lower court's dismissal of claims made by several death row inmates that the process unconstitutionally conceals information to which they are entitled.

The majority agreed that the death row inmates lacked standing to sue because they could not show they'd been harmed by being denied information to which they claim they have a free-speech and public record right.

"... The plaintiffs claim that 'seriously botched lethal-injection executions' have occurred in Ohio, that they have 'imminent execution dates,' and that they have challenged Ohio's execution practices and protocols in the past," Judge Eugene Siler, Jr., wrote. "They aver that, as a result of [House Bill] 663, it is 'more likely' that their executions will not meet legal standards.

"But it is not enough that the plaintiff's executions be imminent, because a validly imposed death sentence that is properly carried out is not 'an invasion of a legally protected interest,'" he wrote. "While a deficient execution is a very serious matter, the existence of deficiencies in this case is only conjectural or hypothetical and is therefore not imminent for [legal standing] purposes."

1 of the 4 plaintiffs in the case is Grady Brinkley, convicted in the 2000 slaying of his 18-year-old Toledo girlfriend, Shantae Smith.

Ohio last executed an inmate in January, 2014, when Dennis McGuire of Montgomery County was put to death using a 2-drug process that it has since abandoned. McGuire died, but witnesses described him as making choking noises and struggling against his restraints for 26 minutes after the drugs began to flow.

In her dissent, Judge Jane B. Stranch described McGuire's death as "this horrifying tale of an execution gone wrong."

She argued that the majority's ruling prohibits condemned inmates from accessing information that may be necessary to prevent the carrying out of an execution that unconstitutionally imposes cruel and unusual punishment.

"Death penalty cases are not just about punishing a convicted person," she wrote. "These cases are also about protecting the functioning of our justice system, which ... envisions a forum for addressing the claims made in this litigation, and perhaps other litigation over state lethal injection laws."

She noted that 4 years ago federal courts had decided to monitor each Ohio execution because of the state's "persistent failure to refusal ... to follow its own written execution protocol."

Between a federal court order and subsequent decisions by Gov. John Kasich, Ohio has had an informal moratorium carrying out executions in place since McGuire's execution. That is about to expire at the end of the year.

Ohio plans to execute Ronald R. Phillips, formerly of Akron and one of the plaintiffs in this case, on Jan. 12. It plans to use a revised process involving an intravenous combination of fairly common drugs: midazolam, an anti-anxiety medication; rocuronium bromide, a paralytic agent, and finally potassium chloride, designed to stop the heart.

After the McGuire execution, Ohio, like other states, struggled to find the drugs it preferred to use because manufacturers refused to make them for executions.

As part of its efforts, lawmakers passed House Bill 663 which, among other things, dangled the promise of at least temporary anonymity for compounding pharmacies that would agree to make the drugs from scratch for the state.

The law would also shield the identities of certain individuals directly involved in the execution process.

Source: Toledo Blade, November 3, 2016

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