ELYRIA — Lethal injection is constitutional, but how Ohio executes condemned inmates is not, Lorain County Common Pleas Judge James Burge ruled Tuesday.

DRUGS OF DEATH — Sodium thiopental (anesthetic) — allowed — Pancuronium bromide (causes paralysis) — banned by Burge — Potassium chloride (stops heart) — banned by Burge

Burge said two of the drugs in a lethal three-drug cocktail used by the state in executions “create an unnecessary risk of causing an agonizing or an excruciatingly painful death.”

Burge ordered the state to rely only on the first drug in the process, a sedative, to carry out the executions of two accused killers who could be sentenced to death if convicted.

The state must drop the second and third drugs in the process — one that paralyzes the inmate and another that stops his heart.

So far, the ruling only applies to the cases of Ruben Rivera and Ronald McCloud, who are awaiting trial in two separate Lorain murders, but it could have broader implications if other judges both in Lorain County and around the state agree with Burge’s ruling.

Quick and painless

Earlier this year, the U.S. Supreme Court ruled in a Kentucky case that lethal injection doesn’t violate the U.S. Constitution’s ban on cruel and unusual punishment.

But Burge said Ohio’s lethal injection protocols violate due process requirements in the Constitution because the same state law that authorizes lethal injection also requires that executions be done “quickly and painlessly.”

During hearings earlier this year, two anesthesiologists testified that the current lethal injection process used in Ohio — if properly administered — would be quick and painless.

But defense expert Mark Heath said that there was no way to guarantee something wouldn’t go wrong and leave the inmate conscious but paralyzed and suffering horribly as he dies.

Burge wrote that it was impossible for the members of the execution team to determine whether an inmate had received enough of the sedative to render him comatose before the other drugs are administered.

That risk of something going wrong, Burge concluded, was high enough to violate an inmate’s right under Ohio law “to an execution without pain, and to an expectancy that his execution will be painless.”

Both Heath and the state’s expert, Mark Dershwitz, said the dose of the sedative administered in the process would be enough to kill a human being without the aid of the other two drugs.

Win, loss or draw?

Jeff Gamso, an attorney for Rivera and McCloud, called Burge’s ruling a victory, although he would have preferred that Burge had taken death off the table as a possible sentence for his clients.

The judge’s decision means that if Ohio is going to execute the men, at least it will be painless, said Gamso, who is also the legal director of the American Civil Liberties Union’s Ohio chapter.

“If Ohio is going to be in the killing business, it should not be in the torture business,” he said.

Kreig Brusnahan, another of Rivera’s attorneys, said all the decision will do — if it survives possible legal challenges to the 9th District Court of Appeals and the Ohio Supreme Court — is change how executions are carried out.

The death penalty itself, which Brusnahan opposes, would remain in effect.

County Prosecutor Dennis Will said that he believes the current lethal injection process is constitutional. His office is reviewing Burge’s ruling and will decide after that review whether it can or should appeal the decision.

Officials from the Ohio Department of Rehabilitation and Correction and the Ohio Attorney General’s Office also said attorneys were reviewing Burge’s ruling.

Prison officials have said they fear that changing the process will only lead to more legal challenges.

“It’s a very, very serious case, and we’re going to treat it very, very seriously,” said Jim Gravelle, press secretary for the attorney general.

The wider impact

Richard Dieter, executive director of the Death Penalty Information Center in Washington, D.C., called Burge’s ruling “groundbreaking.”

He said that while the concept of using only a single drug for executions has been debated, Burge is the first to order its use.

And he won’t be the last, he said.

“This is probably the first salvo in a war over lethal injection in Ohio,” he said.

Ty Alper, associate director of the Death Penalty Clinic at the University of California at Berkeley School of Law, examined single-drug lethal injections in a paper set to be published later this year comparing lethal injection and animal euthanasia.

While the three-drug cocktail may appear to offer a peaceful death to witnesses because the condemned is paralyzed, there’s no way to know for certain if there is suffering, Alper said.

Sedatives used when euthanizing animals of about the same weight and size of humans sometimes cause twitching as the animal dies, but the animal feels nothing, he said. That twitching may be unsettling to onlookers.

“The question is whether we want to risk an execution being botched just so the people watching an execution are spared seeing the body’s natural reaction to death,” said Alper, who opposes the death penalty.

Lorain County Common Pleas Judge James Miraldi, who, along with Burge and Judge Raymond Ewers, is slated to serve on a three-judge panel that will hear the death penalty trial of murder suspect Manuel Nieves later this month, said he expects defense attorneys to raise Burge’s ruling in that and other death penalty cases.

Miraldi said he doesn’t know how he’ll rule when that happens.

“It certainly sounds very logical and well reasoned,” he said of Burge’s ruling. “He’s following the law.”

Contact Brad Dicken at 329-7147 or bdicken@chroniclet.com.

 

---

Print this story
Report an inappropriate comment

---

In order to comment, you must agree to our user agreement and discussion guidelines.

Need help? Email Us.

---