Ohio Considers Constitutionality of Its Lethal Injection Method

After the United States Supreme Court upheld the constitutionality of lethal injection in April, a Lorain County Court of Common Pleas Court ruled Tuesday that Ohio must change its lethal injection formula. Judge James Burge held that the current formula does not meet Ohio’s requirement that “an inmate’s death be painless”.

The current procedure employed by the state requires three steps: (1) the inmate is rendered unconscious; (2) the convict is given a muscle-paralyzer; and, (3) the final injection is given which stops the heart. If any one of these steps is performed incorrectly or is not effective, it is argued that the inmate will suffer much pain prior to death.

In order to comply with state law, Judge Burge has suggested that the procedure be reduced to one injection – “a single massive dose of anesthesia” sufficient to kill the inmate. According to the Judge, "A single massive dose of sodium thiopental or another barbiturate or narcotic drug will cause certain death, reasonably quickly, and with no risk of abrogating the substantive right of the condemned person to expect and be afforded the painless death mandated by the law." The procedure would limit the number of painful injections, but would prolong the process.

With the ruling by Burge, it is now up to the Ohio Attorney General, the Department of Corrections and the Lorain County Prosecutor to determine the true effects of this ruling. Also to be determined is whether state law will need to be amended to remove the phrase “or combination of drugs" from Ohio’s law.

The Supreme Court ruling as to whether lethal injection constitutes cruel and unusual punishment “only directly applied to the southeastern state of Kentucky, where two convicts initially brought the case.” Ohio, unlike Kentucky and the remaining forty-eight states, requires that "death by lethal injection must be caused quickly and painlessly." Even so, some experts believe that the Ohio ruling may provide guidelines to other states in deciding their own lethal injection questions.

After the decision by the United States Supreme Court, it will be interesting to see how this ruling is applied and the actual ramifications it will have upon Ohio law and death penalty procedures. With the requirement in ORC 2949.22 that lethal injection is to cause death “quickly and painlessly”, it is still not certain if the current method (potential pain) or the method suggested by Judge Burge (quickness) actually follow this law. I am sure that many, in Ohio and outside the state, will be following this matter to see how it is ultimately resolved.