Judge rules against Ohio’s lethal injection law

“It doesn’t eliminate the death penalty, the possibility of the death penalty, in Ohio for these gentlemen, but it certainly changes the method of carrying it out.”

Daniel Wightman

Attorney

Officials had not determined whether an appeal will be filed with the Supreme Court.

ELYRIA, Ohio (AP) — Ohio’s method of putting prisoners to death is unconstitutional because two of three drugs used in lethal injection can cause pain, a judge ruled Tuesday.

The process doesn’t provide the quick and painless death required by Ohio law, said Lorain County Common Pleas Judge James Burge, who agreed with two inmates facing murder charges who had challenged the procedure.

Ohio must stop allowing a combination of drugs and focus instead on a single, anesthetic drug, Burge said.

State officials were reviewing the decision and had not determined whether an appeal would be filed with the Ohio Supreme Court, said Jim Gravelle, a spokesman for the Ohio Attorney General’s office.

In an interview in his chambers, Burge said his ruling applies only to the two inmates who challenged the procedure in his court and is likely not appealable unless one of the men gets sentenced to death.

He doubted the ruling would have a direct effect on executions in Ohio unless it influences the Legislature to change the wording of the law concerning lethal injection.

Gov. Ted Strickland, a Democrat who supports the death penalty, said he hadn’t had a chance to discuss the ruling with his top legal adviser and couldn’t comment on its implications.

In April, the U.S. Supreme Court turned back a constitutional challenge to the lethal injection procedure in Kentucky, which uses a similar three-drug cocktail. The court ruled that it didn’t constitute cruel and unusual punishment.

Burge ruled in favor of Ruben Rivera and Ronald McCloud, who are being held in jail awaiting trial in separate murder cases and could receive death sentences if convicted.

Burge held hearings in April and May in which two anesthesiologists testified that one drug — the anesthetic sodium thiopental — would be enough to kill an inmate and that the other two drugs increase the risk of suffering.

Jeffrey Gamso, an attorney for the American Civil Liberties Union of Ohio who represented the inmates, argued that the state could reduce that risk if it used only sodium thiopental and eliminated the other two drugs administered — pancuronium bromide, which causes paralysis, and potassium chloride, which stops the heart.

Burge wrote in his ruling that “the use of two drugs in the lethal injection protocol [pancuronium bromide and potassium chloride] creates an unnecessary and arbitrary risk that the condemned will experience an agonizing and painful death.”

Gamso predicted death row inmates would get some satisfaction from the ruling. “They will breathe a bit of a sigh of relief because they would rather, if they are going to be killed, they would rather not be tortured to death,” Gamso said.

Daniel Wightman, an attorney for McCloud, said he wasn’t sure whether his client was aware of the ruling.

“It doesn’t eliminate the death penalty, the possibility of the death penalty, in Ohio for these gentlemen, but it certainly changes the method of carrying it out,” Wightman said.

“It may be the start of changes down the line. We’ll have to see.”

Gregory Trout, chief legal counsel for the Ohio Department of Rehabilitation and Correction, told the judge during a hearing last month that no other state uses just sodium thiopental and that such a change would invite more legal challenges.

Prisons spokeswoman Andrea Carson said Tuesday the department stands by what Trout said in court.

Ohio has executed 26 inmates since it resumed putting prisoners to death in 1999.