Ohio Court Rejects Death Penalty Method Upheld in Baze:
Lorain County Court of Common Pleas Judge James Burge held yesterday that use of the three-drug lethal injection "cocktail" considered by the U.S. Supreme Court in Baze v. Rees violates Ohio's lethal injection statute because it does not cause death "quickly and painlessly." As the NYT reports here, the judge ordered the administration of a large dose of a single drug instead. Because he invalidated the lethal injection protocol on state statutory grounds, the judge did not consider the state or federal Constitutional claims asserted in the case.
Am I the only person who thinks judges making decisions like this is really, really stupid?
So a judge has a result in mind, and writes an opinion to get there. Does anyone still think that these bench-warmers have anything to do with the actual law?
The judge's reason is NOT "along those lines." The judge uses a statutory right created by one part of the statute to sever another part of the statute. Moreover, he does so based on an unquantified "unnecessary risk" that the legislature's purpose is violated, despite the clear wording of the statute and no evidence of irreconcilable conflict between the provisions.
I disagree; having read the opinion, the principal part of the judge's reasoning is more or less what I described above: R.C.2249.22 permits execution by the injection of "a drug or a combination of drugs of sufficient dosage to quickly and painlessly cause death." Because the use of pancuronium bromide and potassium chloride create a substantial risk that death will not be painless, and because a painless death can be achieved via the use of thiopental alone, the state violates its statutory duty to ensure a quick and painless death when it uses pancuronium bromide and potassium chloride in executions. Paragraph 14 of the Conclusions of Law sums it up nicely: "[B]ecause the Ohio lethal injection protocol includes two drugs... which are not necessary to cause death and which create an unnecessary risk of causing an agonizing or an excruciatingly painful death, the inclusion of these drugs in the lethal injection protocol is inconsistent with the intent of the General Assembly in enacting R.C.2249.22...." Makes perfect sense to me.
Concededly, the opinion gets a little muddled when it leaps to the conclusion that the language "or combination of drugs" must be severed from the statute on federal constitutional grounds; that hardly seems to follow from the conclusion that the current protocol is inconsistent with the statute. One thing I'm not clear on which perhaps explains this leap: is the three-drug protocol specifically provided for by statute, or is in embedded in a regulation somewhere? If the former, then it would seem plausible that the General Assembly implicitly repealed the "quick and painless" language of R.C.2249.22 by specifically approving the three-drug protocol; if the latter, I would think that the regulation could have been overturned on statutory grounds without invoking the Constitution. So there are some odd rhetorical acrobatics going on in the constitutional analysis, but I think the court's statutory interpretation is perfectly accurate.
The last time I filled out an absentee ballot in Ohio, I remember electing common pleas judges. So if Burge's still in office, the voters have only themselves to blame.
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Frankly the use of the three drug cocktail in lethal injection appalls me. Anyone with even the slightest familiarity with the drugs in question should realize that a pure sedative protocol would be effective and painless. It's ridiculous that lethal injections got shut down by these arguments over drug protocol when there are obvious and painless ways to achieve the same end.
As far as outrage over a judge interferring in this process as has already been noted he is a representative of the people duly choosen by constitutional means so I see no problem with him considering cases like this.
I have yet to see a defense of the current complicated regime that makes sense, if quick, painless and easy execution is the goal.
There is absolutely no good reason to use the three drug cocktail. There are any number of ways of executing people quickly, humanely, and cheaply, ranging from a massive dose of sodium thiopental or any of a number of other drugs (e.g. phenobarbitol or morphine) to a bullet in the back of the head. It is indecent to insist on using a protocol which risks subjecting the condemned to an agonizing death when alternatives are readily available.
And please let's not have the usual nonsense about this being a stunt by anti-death-penalty activists. The legally most questionable part of the decision is the part that enables the death penalty to be carried out. And for the record, I am in favor of the death penalty.
http://en.wikipedia.org/wiki/Nitrogen_asphyxiation
Problem solved. Not even Burge could perform his acrobatic monkeyshines with this method.