Why is Ken Biros still alive?

Last Tuesday the State of Ohio had a "dress rehearsal" for the execution of Kenneth Biros. It was not billed as a dress rehearsal, but it certainly turned out that way. The witnesses were notified. Biros was transferred to the death house at Lucasville Prison. Biros even had his last specially requested meal including his favorite blueberry ice cream.
There was little chance that Biros would be executed. Sure, the governor refused his clemency request and the Federal Sixth Circuit Court of Appeals dismissed Biros' lawsuit challenging the constitutionality of lethal injection.
On the surface it appeared all systems were "go." The apparatus of death was on high alert at Lucasville. However, was it ever likely that Biros would be executed on March 20? A close look at the events leading to the execution date would seem to strongly indicate that the execution didn't have a chance.
A U.S. Supreme Court decision last June opened the floodgate for convicted murderers like Biros and 3,300 other death row inmates, to challenge the death penalty. The challenge is not directed at the propriety of the death penalty, but rather the constitutionality of the means by which the death penalty is carried out.
Last summer, the Supreme Court ruled that Clarence Hill, a condemned killer moments from being executed in a Florida prison, could make a last minute challenge to the use of lethal injection. Hill and others had claimed that lethal injection was unnecessarily painful and a violation of the Eighth Amendment to the United States Constitution which prohibits cruel and unusual punishment.
Successful executions
Lethal injection is used in 38 of 39 states that impose the death penalty. Since 1982, nearly 900 murderers have been successfully executed by means of lethal injection. The Supreme Court in Hill did not hold that lethal injection violated the Eighth Amendment. In fact, the court has never ruled on the constitutionality of a specific method of execution. The court merely said that condemned killers could raise the issue.
The lethal injection issue gained steam after doctors in several states refused to comply with court orders requiring a physician's presence at all executions. California, Missouri and North Carolina suspended executions and at least eight other states including Ohio have halted some or all executions, until the lethal injection issue is resolved.
In light of the controversy regarding lethal injection, Ohio officials should have known that the chances of Biros being executed were slim --at best. Last summer, Biros joined with eight other death row inmates to sue the state of Ohio. The claimants suggest that the practice of administering drugs that essentially put a condemned prisoner to sleep and ultimately stop his heart can cause unnecessary pain.
Biros not only contends that lethal injection is cruel, he disputes that the death penalty applies to the facts of his case. Biros admitted to killing Tami Engstrom. He contends that the murder occurred as a result of a drunken rage. The facts indicated that Biros had inflicted 91 injuries upon Engstrom prior to her death by strangulation. Her body was dismembered and buried in several places across two states. Biros was convicted of first-degree murder and sentenced to death by a Trumbull County jury. He is far from a sympathetic figure.
In December, the United States District Court issued Biros a stay of execution. On March 2, the 6th U.S. Circuit Court of Appeals dismissed Biros' lawsuit. The court didn't decide the constitutionality of lethal injection but rather that his lawsuit was not filed on time. Biros filed an appeal and the stay of execution remained in place.
Last reprieve
On March 16, Gov. Ted Strickland denied Biros' petition for clemency and here is where it gets tricky. Normally as the date of execution draws near, attorneys for the condemned killer file a flurry of requests with the court for one last reprieve, anything to delay carrying out the execution.
In Biros' case, the Ohio Attorney General's Office was making the eleventh hour requests. They asked the 6th Circuit to lift the stay imposed by the United States District Court. The 6th Circuit refused. A desperate appeal by the attorney general to U.S. Supreme Court was denied in a one-line order issued hours after the scheduled time for Biros' execution.
Biros survived yet another brush with death. His "scheduled" execution amounted to a lot of media attention, a lot of wasted state resources and yet, another cruel and unusual delay for the family of Tami Engstrom, 16 years and counting.
Matthew T. Mangino is the former district attorney of Lawrence County, Pennsylvania, and a featured columnist for the Pennsylvania Law Weekly.