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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.

bornyesterday (mail) (www):
A shotgun to the head is quick and painless, but we can't do that either.
6.11.2008 9:15am
autolykos:

As the NYT reports here, the judge ordered the administration of a large dose of a single drug instead.


Am I the only person who thinks judges making decisions like this is really, really stupid?
6.11.2008 10:03am
OrinKerr:
Based on an initial read, the reasoning of the case makes my head hurt; it seems to me that there are some serious acrobatics to get to the result the judge wants.
6.11.2008 10:08am
DangerMouse:
Based on an initial read, the reasoning of the case makes my head hurt; it seems to me that there are some serious acrobatics to get to the result the judge wants.

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?
6.11.2008 10:38am
Guest101:
I haven't read the case, but based on my knowledge of lethal injection practices the judge's conclusion makes perfect sense. It really isn't a controversial point that the use of pancuronium bromide is medically unnecessary and is used only to suppress muscle spams and give an appearance of a peaceful death. There's simply no way to tell under such circumstances whether a death is painless or agonizing since a death by potassium chrloride would unquestionably be painful unless the victim-- sorry, "patient"-- has been successfully rendered unconscious first. Assuming that the judge's reasoning was basically along those lines, I don't see how any "acrobatics" are involved.
6.11.2008 10:54am
Bpbatista (mail):
I wonder what Burge's idol, Che Guevara, would order for executions?
6.11.2008 11:13am
AnonLawStudent:

Assuming that the judge's reasoning was basically along those lines, I don't see how any "acrobatics" are involved.

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.
6.11.2008 11:19am
Guest101:

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.
6.11.2008 11:45am
Smokey:
More on this judge.
6.11.2008 11:55am
Kenvee:
Interesting. Texas just reaffirmed its procedure in light of Baze on Monday, and our first execution is scheduled for tonight. I'm surprised at how little coverage its received. Anyone know what states other than Texas and Ohio have considered their procedures post-Baze?
6.11.2008 12:58pm
BobDoyle (mail):
Why aren't more of these rogue judges impeached?
6.11.2008 12:59pm
U.Va. 3L:
Why aren't more of these rogue judges impeached?

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.
6.11.2008 1:11pm
Bob from Ohio (mail):
Burge is in his first term. I think he was elected in 2006.
6.11.2008 1:52pm
Brad Ford (mail):
GOD HAS SPOKEN!!! While a single drug might be the best way to cause a painless death, a judge, with little or no expertise (one would hope) in killing peopled doesn't seem like the ideal person to decide the "best" method of lethal injection.
6.11.2008 3:59pm
TruePath (mail) (www):
Yes, but the legislators who, unlike the judge, doesn't even bother to take the time to review the facts about the drugs, are extremely well equipped to decide the best method of lethal injection.

---

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.
6.11.2008 5:22pm
fishbane (mail):
I understand that the legal issues are interesting, but does anyone really have a problem with the idea that, should lethal injection be warranted, that it isn't so hard to find a substance to do it quickly and painlessly? After all, the same government that is performing the act also spends a lot of money proclaiming how deadly opiates and synthetic variants are. They're cheap, too.

I have yet to see a defense of the current complicated regime that makes sense, if quick, painless and easy execution is the goal.
6.12.2008 1:10am
Bill Poser (mail) (www):
I am appalled at the criticism of this decision. Guest1 is right on the money. The only part of this decision that involves acrobatics is the remedy. If you've really got a problem with that, the alternative would have been for the court to strike the death penalty statute in its entirety. I'd say this judge is avoiding activism.

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.
6.13.2008 7:35pm
MarkJ (mail):

http://en.wikipedia.org/wiki/Nitrogen_asphyxiation

Problem solved. Not even Burge could perform his acrobatic monkeyshines with this method.
6.13.2008 8:25pm
Lee Kane:
ps. I am against the death penalty--too many mistakes in its award, not to mention the outdated (and most likely painful) technology.
6.13.2008 11:05pm
RightWingRN (mail):
Wow. A man with a poster of Che on the wall has the gall to be against the death penalty! Chutzpah! Lethal injection is a hell of a lot more human than the lead injections his hero used. We can pee on each others feet all we want about this, but we are forgetting the most important thing: The Victims. We spend all out time worrying about wheter or not a rapist/murderer suffers a bit before they die?!? I am a nurse, I know what these drugs can do. In the doses used these subhumans feel NOTHING. Unfortunately. Let's just go back to public hanging and be doen with this!
6.14.2008 9:26am
Kazinski:
Why don't they just give them an overdose of morphine? Or beter yet heroin from the evidence stash? Then they can't complain it is painful, and it will have the salutary effect of a large number of immates dropping their appeals and fighting to get to the head of the line.
6.14.2008 5:02pm