A Needle in the Haystack: Finding a Solution to Ohio's Lethal Injection Problems

• Author: Elliot Garvey
• Position: J.D. candidate, 2010
• Pages: 609-642

A NEEDLE IN THE HAYSTACK: FINDING A SOLUTION

TO OHIO’S LETHAL INJECTION PROBLEMS

ELLIOT GARVEY1

I. INTRODUCTION

On September 15, 2009, Ohio Governor Ted Strickland stopped the

lethal injection o f Romell Broom after state prison officials struggled for

two hours t o find a usable vein.1 Th e failed attempt to execute Ro mell

Broom was Ohio’s third botched execution in as many years.2 On October

5, 200 9, the Sixth Cir cuit Court of Appeals ordered the stay of deat h ro w

inmate Lawrenc e Reynolds’ execution in response to t he “serious and

troubling difficulties” th e State experienced in their recent lethal inject ion

attempts.3 On Novemb er 30, 2009, Ohio became the first state to adopt a

one-drug system of lethal injection to carry out death sentences. 4 The

newly ado pted pro tocol ut ilizes a single lethal dose o f an anesthetic,

eliminating the use of two other drugs that are included in the common

three-drug protocol other states use in their executi on procedure. 5

In 20 08, th e Supreme Court of the United States upheld a form of the

three-drug lethal injection used by Kentucky in Baze v. Rees.6 The Court

concluded that a method o f execution violates the Eighth Amendment’s

ban on cruel and unusual punishment only if it present s an “objectively

intolerable risk of harm” or “substantial risk of serious harm.”7 Lethal

Copyright © 2010, Elliot Garvey

1 J.D. candidate, 2010. I would like to thank Ms . Dana Hansen Chavis of Federal

Defender Services of Eastern Tennessee, Inc. for providing valuable guidance regarding the

litigation of these issues. Special thanks as well to Mr. David Stebbin s, Assistant Feder al

Public Defend er, Capital Habeas Unit for the Southern District of Ohio for his insight into

the ongoing death penalty litigation in Ohio.

1 Warrant o f Reprieve for R omell Broom (Sept. 15, 2009) (on file with Capital

University Law Review); Reynolds v. Strickland, 583 F.3d 956, 957, 958 (6th Cir. 2009)

(Sutton, J., dissenting).

2 Reynolds, 583 F.3d at 957 , 961 (Sutton, J., dissenting).

3 Id. at 957.

4 Andrew Welsh-Huggins, Ohio Co uld Set State Record for Lethal Injections,

ASSOCIATED PRESS, Feb. 5, 2010.

5 Id.; Affidavit of Terry Coll ins, Cooey v. Taft, 2:04-cv-1156 (S.D. O hio) (Frost, D.J.).

6 128 S. Ct. 1520, 1523 (2008).

7 Id. at 1531.

610 CAPITAL UNIV ERSITY LAW REVIEW [38:609

injection is the exclus ive or primary means of execution in all thirty-six

states that currently impose capital punishment and is the method used by

the feder al govern ment.8 With the recent ch anges in execut ion pro cedure,

Ohio became the first state to elimin ate two of the drugs from the three-

drug lethal injection protocol and carry o ut ex ecutions using only a singl e

lethal dose o f an anestheti c.9 Although Ohio’s new protocol resolves many

of the i ssues addres sed by the Court in Baze, it remains to be seen whether

the n ew syste m sufficiently addresses the inherent risks of administratio n,

such that it will be safe from all fut ure challenges .

First, this article focuses on the develop ment of the Cr uel and Unusual

Punishment Claus e of the Eighth Amendm ent through Baze. Next, i t

reviews the debate raised i n Baze concerning th e legi slative decisions that

resulted in a nationwide consensus on the three-drug lethal i njection and

the allegation s that th is consensu s is the product of “ad ministrative

convenience.” The third section asses ses the scient ific and medical

evidence presented in Baze that s upports the claim that the three-drug

method presents a “substantial risk of serious harm.” Finally, the fourth

section examines Ohio’s recen t struggles with carrying out lethal injections

using a form of the three-drug protocol and concludes with an analysis of

whether the new on e-drug procedu re resolves thes e problems.

II. HISTORY OF THE EIGHTH AME NDMENT: THE PATH TO BAZE

A. Cruel and Unus ual Punishmen t

The United States Constitution ’s Eighth Amendment provides t hat

“[e]xcessive bail shall n ot be req uired, nor excessive fines imposed, nor

cruel and unusual punishments infl icted.”10 The Cruel and Unusual

Punishment Clause forbids federal ag encies from imposing punishments of

torture or “unnecessary cruelty,” 11 and it is applicable to the s tates throu gh

the Fourteenth Amendment’s Due Process Cl ause.12 The phrase “cruel and

unusual,” adopted from th e Engli sh Bill of Rights of 1689,13 was included

in the Eig hth Amen dment by American founders who were primarily

8 Id. at 1526–27.

9 Welsh-Huggins, supra not e 4.

10 U.S. CONST. amend. VIII.

11 Wilkerson v. Utah, 99 U.S. 130 , 136 (1878).

12 Baze, 128 S. Ct. at 1529 (citin g Robinson v. California, 370 U.S. 660, 666 (19 62)).

13 Gregg v. Georgia, 428 U.S. 153 , 169 (1976).

2010] OHIO’S LETH AL INJECTION P ROBLEMS 611

concerned with “barbarous” methods of punishment commonly used by

colonial powers of the time. 14

On three occasions, t he Supreme Court h as considered the

constitutionali ty of a specific method of execut ion.15 In 1876, t he Court

upheld t he use of a firing squad to execute a con victed murd erer in

Wilkerson v. Utah.16 The Cou rt acknowledged t he difficulty of explicit ly

defining what constitutes cruel and unusual punishment, but noted that “it

is sa fe to affirm that punishments of torture . . . and all others in the same

line of unnecessary cruelty, are forbidden b y [t he Eighth Amendment].”17

The use of a firing sq uad to carry out a death sentence was common for

military crimes, and the Court foun d ample authority to s uggest th at either

shooting or hang ing could be used t o execute a con victed murdere r.18

In 1890, the Court heard a challenge to the use of the newly created

electric chai r in In Re Kemmler.19 The Court h eld that New York’s use of

electrocution to carry out a death sentence was not cruel and unu sual,

concluding, “Punishments are cruel when they in volve tort ure or a

lingering death . . . [and] someth ing more than the mer e exting uishment of

life.”20 The Court also noted that New York pass ed the statute authorizing

the u se of electrocution i n an effort to devise the mo st h umane m ethod of

execution.21 However, these statements were extraneous to the Court’s

actual holding th at the Eighth Amendment did no t apply to the st ates.22

In 1947, the Court considered a pris oner’s Eig hth and Fourteenth

Amendment challenges to a second attempt at elect rocution in Lo uisiana

ex rel. Francis v. Resweber.23 The petit ioner was convicted of murder and

sentenced to death by electrocution, but after a mech anical failure, h e was

removed from the cha ir and returned to pris on.24 The plurality found that

14 Id. at 171.

15 Louisiana ex rel. Franci s v. Resweber, 329 U.S. 459 (1947); In re Kemmler, 136 U.S.

436 (1890); Wilkerson, 99 U.S. 130.

16 99 U.S. 130, 134–35 (1878 ).

17 Id. at 136.

18 Id. at 134–36.

19 136 U.S. 436, 441 (1890).

20 Id. at 447.

21 Id.

22 Id. at 44 8–49 (holding that the enactment of the act was w ithin the state’s legitimate

sphere of the legi slative power of the state and did not abridge any privilege or immunity of

the petitioner).

23 329 U.S. 460 (1947).

24 Id. at 460–61.