Execution ruling stands alone

Challenges to the lethal injection method have increased in recent years.

CLEVELAND (AP) — A judge’s ruling that Ohio should execute its condemned prisoners the same way veterinarians euthanize dogs and cats will likely influence judges in other states hearing lethal injection challenges, death penalty experts say.

Although the decision pertains to just two defendants, the effects could be wide-reaching.

“This is a force to be reckoned with,” said Deborah Denno, a professor at Fordham Law School who specializes in death penalty issues.

Lorain County Common Pleas Judge James Burge says Ohio must stop using a three-drug combination for executions and focus instead on a single, anesthetic drug. He based his decision on testimony from two anesthesiologists who said the last two drugs administered create the risk that the prisoner will experience pain.

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. They contended that Ohio’s lethal injection procedure doesn’t give the quick and painless death required by state law.

Such challenges to the lethal injection method have increased in recent years and are pending in all 35 states that use lethal injection, said Ty Alper, associate director of the U.C. Berkeley School of Law’s Death Penalty Clinic, which trains students to serve death row inmates.

While several federal judges have recommended that states consider switching to an anesthetic-only procedure, Burge is the first judge to order it, Alper said.

“We’ll see more judges consider doing the same thing now that there is a first one,” Alper said Wednesday.

In April, the U.S. Supreme Court turned back a constitutional challenge to the lethal injection procedure in Kentucky, which uses the same three drugs as Ohio. The high court ruled that Kentucky’s procedure didn’t constitute cruel and unusual punishment. Ohio’s lethal injection protocol is similar to Kentucky’s, but not identical.

Burge held hearings in April in which two anesthesiologists testified that the first drug administered — the anesthetic sodium thiopental — would be enough to kill an inmate. The additional two drugs increase the risk of suffering, they said.

Dr. Mark Heath, an assistant professor of anesthesiology at Columbia University, testified in Burge’s courtroom that Ohio’s lethal injection procedure isn’t appropriate for household pets, let alone humans. Veterinarians typically use an anesthetic to euthanize animals.

The major criticism of the three-drug execution procedure is that if the executioner administers too little anesthetic or makes mistakes while injecting it, the inmate could suffer excruciating pain from the other two drugs.

Burge wrote that pancuronium bromide, which causes paralysis, and potassium chloride, which stops the heart, create “an unnecessary and arbitrary risk that the condemned will experience an agonizing and painful death.”

The three-drug combination was invented 31 years ago in Oklahoma, which became the first state to adopt lethal injection.

Other states followed Oklahoma’s lead without much of their own research, said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center.

“The three-drug protocol is very problematic,” Dieter said. “States are looking for alternatives but have been cautious about making any changes. I think if one state tries a different method and it’s less risky and can be administered without doctors, I think other states will adopt it.”

Burge doubted his ruling would impact executions in Ohio unless the Legislature moves to change the state’s lethal injection law.

But Dieter expects the decision to be frequently referenced by defense attorneys trying to block executions.

“This is gaining credibility,” Dieter said. “This ruling moves that forward to the point where courts are seriously going to consider it now. This will be a significant part of the debate.”