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

AuthorElliot Garvey
PositionJ.D. candidate, 2010
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,
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.
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.
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).
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.

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