By Marty Schladen
The Columbus Dispatch, Ohio
COLUMBUS, Ohio — Despite two failed executions since 2009 and another that had severe problems, Ohio officials say they do not plan to change the state’s execution protocol, and they’re seeking the dismissal of a lawsuit challenging it.
Meanwhile, attorneys for the condemned are examining whether to argue that the latest failed execution adds to the evidence that Ohio can’t legally carry out capital punishment using its latest method.
Ohio Attorney General Mike DeWine filed a motion in federal court again last week seeking the dismissal of a suit filed by scores of death-row inmates who contend that the way the state conducts executions violates their constitutional protections.
DeWine’s move on Monday came five days after the execution of Alva Campbell was called off about 30 minutes into the procedure because corrections officials determined that they couldn’t find two suitable veins for a lethal injection. Corrections workers attempted to insert an IV four times before giving up. Campbell, a twice-convicted killer, appeared to cry with relief.
It was only the third time that a condemned man in the United States has left the execution chamber alive. Another of the three times also was in Ohio — in 2009.
DeWine’s request to dismiss the 13-year-old suit against the state also comes after a 2014 execution resulted in Dennis McGuire struggling, choking and gasping for more than 10 minutes before dying.
The lawsuit against the state on behalf of many of Ohio’s death-row inmates says that the way the state executes people violates a number of protections under the U.S. Constitution, many of them tracking back to the Eighth Amendment’s protection against cruel and unusual punishment.
“It’s about whether we will, in essence, torture these men to death in the process of killing them,” said Allen Bohnert, the federal public defender who is leading the litigation.
The suit doesn’t seek to have the death penalty itself declared unconstitutional; it seeks to have Ohio’s method of carrying it out declared so.
A challenge for attorneys bringing the suit is that the Ohio Department of Rehabilitation and Correction has changed its protocol and continued to carry out executions while the suit is pending. That has forced the attorneys to repeatedly amend their complaints, slowing the suit’s progress.
In 2014, after manufacturers stopped selling some drugs in Ohio’s three-drug protocol, the state switched to an untested two-drug cocktail for McGuire’s troubled execution. Executions that year in Oklahoma and Arizona that, like Ohio, used the drug midazolam encountered similar problems.
Last year, Ohio again switched to a three-drug protocol, but it continues to use midazolam. Among the Ohio inmates’ arguments in federal court is that experimenting on them in that way with new execution drugs violates their rights.
Such executions “constitute a human experiment without voluntary consent, using unapproved investigational new drugs illegally compounded and dispensed by an ethically compromised pharmacist, or unapproved, misbranded drugs manufactured in substandard facilities and exported and illegally imported by ethically compromised drug-source defendants, all in violation of the Fourteenth Amendment,” they say in their complaint.
In addition to the suit in U.S. District Court, attorneys have appealed the cases of Campbell and Raymond Tibbetts, who is scheduled to die in February, to the 6th U.S. Circuit Court of Appeals in Cincinnati.
Dan Tierney, a spokesman for the attorney general’s office, declined to comment on ongoing litigation. But attorneys for the state, in their motion to dismiss, cited an earlier ruling in the district-court case saying that just because a “procedure has never before been used does not itself establish that the procedure is cruel and unusual. ... Indeed, the development of increasingly humane methods of execution is to be encouraged.”
The Ohio execution statute requires “a lethal injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”
But in summing up the attempted execution of Romell Broom in 2009, the Ohio Supreme Court acknowledged that he suffered pain as corrections workers stuck needles into him 18 times over two hours. It describes a prison worker who “struck bone” with one of the sticks, causing Broom to scream from the pain. The account describes another member of the execution team “sweating profusely” and rushing out of the death chamber saying “No.”
However, the justices ruled that rescheduling Broom’s execution would not violate his rights, and the attorney general told the federal court last week that the 11th Amendment prevents federal courts from telling their state counterparts how to adjudicate state law. Citing case law, the state also seemed to say that as long as it doesn’t intentionally torture condemned inmates in the death chamber, it can’t violate their constitutional rights.
“The bottom line is this: (the state) cannot, as a matter of law, burden, much less violate, Eighth Amendment rights by negligently deviating from required execution procedures. ‘Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual,’” the motion to dismiss says.
Bohnert said he and his team are assessing how Ohio’s latest failed execution fits into their case, the outcome of which is unclear.
“Sometimes it’s really easy to see where things are going to go,” he said. “Sometimes, it’s really hard. Right now, this is one of those times where it’s really hard to see.”
©2017 The Columbus Dispatch (Columbus, Ohio)