Ohio argues that legal challenges to lethal injection moot with switch to single drug

Ohio: 1 lethal injection drug should end lawsuit

COLUMBUS, Ohio — Ohio says its decision to become the first state to execute inmates using one drug eliminates further discussion of whether the injection causes pain and could be unconstitutional.

Some death penalty opponents agree but say it could be years before other states follow suit.

Attorney General Richard Cordray says a long-running lawsuit against the state is based on allegations that drugs that paralyze and stop the heart could be painful for condemned inmates.

Cordray said Friday the state’s decision to adopt a single, fatal anesthetic removes that risk and renders the lawsuit’s arguments moot.

State Public Defender Tim Young, whose offices represents some inmates involved in the lawsuit, supports the single anesthetic.

The state’s decision comes two months after an Ohio death row inmate walked away from an unsuccessful execution.

THIS IS A BREAKING NEWS UPDATE. Check back soon for further information. AP’s earlier story is below.

COLUMBUS, Ohio (AP) — Ohio’s death chamber is set to resume executions next month using a single drug that has been used in the U.S. to euthanize pets but never to put condemned prisoners to death.

Barring legal challenges, condemned inmate Kenneth Biros is scheduled Dec. 8 to be the first prisoner in the nation to be executed using a single dose of the drug thiopental sodium instead of the combination of three drugs that the state had been using.

A federal judge had temporarily halted Biros’ execution because of the botched execution of Romell Broom in September, which prompted the new execution method announced Friday. Executioners couldn’t find a suitable vein on Broom to administer the lethal drugs, and he walked away from the execution chamber after the governor issued a temporary stay.

Broom is sentenced to die for raping and murdering a 14-year-old girl in 1984.

In announcing plans to switch to a one-drug method by Nov. 30, Ohio waded into uncharted waters. Death penalty opponents praised the new rules as a step forward — albeit one that has never been tried on prisoners. However, the decision is almost certain to be appealed and draw the close attention of other states that have long used the three-drug method.

“I chose to do it because I’m getting sued either way,” Terry Collins, Ohio prisons director, said Friday.

Under the three-drug method, the first drug knocks out an inmate, the second paralyzes him and the third stops his heart — a process that death penalty opponents argue is excruciatingly painful if the first drug doesn’t work.

The single-drug technique amounts to an overdose of anesthesia, Collins said.

Death penalty opponents hailed Collins’ decision as making executions more humane but expressed reservations about using an untested method. The same drug is commonly used to euthanize pets, sedate surgery patients and in some parts of Europe has been used in assisted suicides.

“This is a significant step forward,” said Ty Alper, associate director of the Death Penalty Clinic at the University of California, Berkeley, law school. “Paralyzing inmates before executing them — so we can’t tell whether they are suffering — is a barbaric practice, and Ohio should be commended for stopping it.”

Richard Dieter, director of the nonprofit Death Penalty Information Center, called the new practice an experiment on inmates.

“They’re human subjects and they’re not willingly part of this,” Dieter said. “This is experimenting with the unknown, and that always raises concerns.”

Ohio’s decision, filed in papers Friday in U.S. District Court, said it would switch from the three-drug method to a single injection of thiopental sodium into a vein. A separate two-drug muscle injection will be available as a backup.

Collins said the backup method, had it been in place, would have given Broom’s executioners an alternative. He repeatedly commended the execution team as professional and competent, but noted that there was nothing for them to do when Broom’s vein was incapable of sustaining the flow of the IV drugs.

Gov. Ted Strickland stopped Broom’s execution after two hours when executioners failed to find a suitable vein. Broom later complained in an affidavit that his executioners painfully hit muscle and bone during as many as 18 attempts to reach a vein.

Temporary moratoriums on executions also are in place in California and Maryland, where courts are reviewing proposed changes to injection procedures, though none involving a switch to a single drug.

Other states are unlikely to make a similar switch soon, said Doug Berman, an Ohio State University law professor and death penalty expert.

Several states besides Ohio also have faced constitutional challenges to their three-drug execution procedures, but Ohio is the first to drop that approach in favor of a single-drug method.

The U.S. Supreme Court upheld the constitutionality of lethal injection last year, but Ohio’s new system is substantially different than the three-drug process the court examined. In its ruling, Chief Justice John Roberts briefly addressed the prospect of using a single sedative in a dose large enough to cause death.

The one-drug method, Roberts said, “has problems of its own, and has never been tried by a single state.”

That means Ohio could be opening itself to new litigation, said Deborah Denno, a law professor at Fordham University in New York and lethal injection expert.

“The inmates who are going to be executed could challenge the constitutionality of what’s being raised in Ohio,” Denno said Friday.

Ohio has put 32 people to death since 1999, when executions resumed in the state.

Associated Press writer Andrew Welsh-Huggins contributed to this report.

On The Net:

Ohio Department of Rehabilitation and Correction: www.drc.ohio.gov