Ohio's Death Penalty, Re-examined
New lethal injection drug is different, but in a similar vein
By Erin Norris |
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What began as a botched execution unexpectedly became the catalyst for a full-scale reform of the state's lethal injection protocol, catapulting Ohio to the forefront of the renewed death penalty debate. It seems like a page ripped out of the Law & Order playbook, but it is a strikingly real example of the critical flaws in an outdated capital punishment system.
Convicted in 1984 for the abduction and murder of a 14-year-old girl in Cleveland, Romell Broom had been sentenced to the death penalty. On September 15th, Broom was strapped to a gurney in the death chamber in the Southern Ohio Correctional Facility and prepared for lethal injection. His multiple collapsed veins posed a serious problem for the execution team, who attempted for two hours to insert a shunt to administer the injection, only to be forced to abort the procedure altogether. The unprecedented incident was the proverbial last straw for Ohio lawmakers and prison officials, and Governor Strickland instated a de facto moratorium, staying the executions of other inmates while a comprehensive review of the lethal injection system was conducted.
The other inmates spared from their original execution dates, Darryl Durr, Lawrence Reynolds and Kenneth Biros, were all scheduled to be put to death shortly after Broom. Durr was convicted of the 1988 rape and murder of a Cleveland woman, and has been on death row for 22 years, while Reynolds was convicted of the 1994 murder of his elderly neighbor and has been on death row for 15 years. Biros was convicted of kidnapping and murdering a woman in 1991, and has been on death row for 18 years. Lawyers for the inmates filed complaints against the state, alleging that lethal injection was a form of cruel and unusual punishment.
Previously, execution by lethal injection was carried out via the administration of three drugs: sodium thiopental to induce unconsciousness, suxamethonium chloride, pancuronium bromide, or tubocurarine chloride to induce total paralysis, and potassium chloride to induce cardiac arrest. In order to minimize complications, the drugs would be administered in sequence rather than simultaneously, usually through two intravenous tubes.
Lawyers and medical professionals have long argued that the three-drug procedure is inhumane and often ineffective in providing a quick and painless execution, and that significant reform was overdue. Beyond difficulties with vein location, the paralyzing agent stops all muscular activity, including the respiratory system, and the potassium chloride, while effective at inducing cardiac arrest, would be excruciatingly painful if the recipient were awake. Inmates may regain consciousness after the sodium thiopental (considered a short-acting anesthetic) wears off, but, due to paralysis, would be unable to show signs of what is happening to them: simultaneous asphyxiation and cardiac arrest. Instead, they would appear to be asleep.
Ohio has seen three botched executions in just three years, and previous changes to the protocol were cursory at best. One change in procedure, a step introduced over the summer and aptly named "set to die," required a warden or prison official to ensure that the inmate was fully paralyzed and unconscious before the final, lethal dose was administered. This failed to address the most common complication - a lack of usable veins.
Dr. Mark Dershwitz, an anesthesiology expert and professor at the University of Massachusetts, stated in a recent interview, "In my experience in reviewing cases, the most common reason for the difficulty in obtaining peripheral intravenous access has been a prior history of intravenous drug use." Inmates have also been known to dehydrate themselves before an execution to decrease the size and visibility of their veins.
New drugs, and a "plan B"
The new protocol, developed after extensive review by the state's prison officials, involves only one injection, and one drug - an intravenously administered lethal dose of the anesthetic, sodium thiopental, doing away with the paralysis and cardiac-arrest inducing agents altogether.
And, collapsed or dehydrated veins will no longer thwart execution teams: when intravenous injection fails, an intramuscular injection of midazolam and hydromorphone, an opiate, will be conducted. Midazolam acts as a potent muscle relaxant and anticonvulsant, while hydromorphone, a derivative of morphine, is a powerful narcotic. By eliminating the need for a receptive vein, prison officials can ensure that a case such as Broom's never happens again.
Of course, this method is not without controversy.
"The onset time [for the drugs] would be a few minutes slower via the intramuscular route," said Dershwitz. This is likely to upset lawyers and abolitionists who are concerned with the speed of the process. And what of the first inmates to be executed under the new order?
Kenneth Biros' lawyer, Tim Sweeney, has already argued that the three-drug method was unconstitutional and unreliable. The new protocol has not swayed his decision to appeal, however, and in a recent filing with the 6th Circuit Court of Appeals, claims that the backup method of intramuscular injection is largely untested and experimental. If this appeal is denied, Biros will be executed on December 8th. Romell Broom's rescheduled execution date will be set by the Ohio Supreme Court, but probably not until mid-to-late December.
For those who believe that capital punishment is inherently a violation of human and constitutional rights, no method of execution will be acceptable. As long as the death penalty is enforced, the state is likely to see considerable litigation, but as Terry Collins, the director of the Ohio Department of Rehabilitation and Correction said, "We figure we're going to get sued whatever we do with the death penalty," adding, "But with the new approach, we have a plan that works and we have the backup plan we really needed."
Ty Alper, the associate director of the Death Penalty Clinic at the University of California, Berkeley, also believes this is a step in the right direction, and hopes that other states bemired in lethal-injection litigation, such as California and Maryland, will take note.
"Lawyers, judges, and legislative commissions have been suggesting for years that states abandon the three-drug protocol," stated Alper in an e-mail interview. "My hope is that other states will realize that there is no need to paralyze inmates before executing them, and that in fact, doing so risks a horribly torturous execution."
The debate over execution is not likely to subside, and the future of our capital punishment system may be rife with litigation and moratoriums, but if the recent legal debacle has taught us anything, it is that we should not be afraid to go back to the drawing board. Public discourse and government disclosure are key, and revising a broken method, especially one that directly affects human lives, should not be confined to courtrooms and prisons.
Originally Published: December 1, 2009
