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The Ohio Situation

An unexplained order out of the US Supreme Court has the anti-death-penalty side crowing in Ohio, but their crowing may be short-lived.

Ohio pioneered the switch to the single-drug method of execution back in 2009.  By taking exactly the step that everyone attacking the three-drug method had been touting as the alternative, Ohio was able to carry out justice while it remained stalled in other states.  Beginning with Kenneth Biros in December 2009, 14 murderers met their well-deserved fate in a span of two years.

Then the complaint was raised of deviations from the protocol.  Well, there are different kinds of deviations, some important and some trivial.  In every activity governed by detailed rules, there are some deviations from the rules.  When was the last time you saw a football game with zero penalties?  How many issues of a major newspaper have zero typos, zero grammatical errors, and zero factual mistakes?  How many trials have zero valid objections?  Applied to their own profession, judges know very well that minor deviations are inevitable and not cause for alarm, even when the subject matter of the proceeding as a whole is grave.

In the course of this litigation, the court recognized that some aspects of the protocol are "core" matters -- preparing the drugs, preparing for the injection, having "systemic redundancies" to reduce or eliminate the possibility of human error, and controlling who is involved in the process.  What about "non-core" matters?  Ohio represented that only the Director could approve any deviations.  They probably shouldn't have, but is that the proper concern of the federal court at all?  If the matter is "non-core," if a deviation does not expose the inmate to cruel punishment, then a lack of complete uniformity does not rise to an equal protection violation.
By analogy, every litigant before the federal court has a right to due process of law, but does that give every litigant the right to insist on complete uniformity of procedures?  Is it a violation of the "equal protection component of the due process clause" if Judge Frost runs his courtroom somewhat differently from the judge down the hall?  Of course not.

Yet Judge Frost granted a temporary restraining order and a preliminary injunction because of "Ohio's failure to stand by its representation that all possible deviations flow up to the Director...."  The Sixth Circuit denied the state's emergency motion to vacate the stay in a terse opinion, not really grappling with the legal issues.

The state sought relief from the Supreme Court.  Lorraine's attorneys responded with an argument on purely procedural grounds.  They said the stay was moot as the stayed execution date had already passed.  They distinguished the stay from the preliminary injunction, arguing that the state had not sought review of the latter.  The state should not be able to get emergency review of a preliminary injunction through a motion to vacate a stay but instead "be required to follow the ordinary course of proceedings...."  The response makes no attempt to defend the decisions of the lower courts on the merits.

Today the Supreme Court denied the state's motion, and Lorraine's attorneys are crowing that the high court decided the merits in their favor.  The AP story noted in today's News Scan says, " 'We are hopeful that Governor Kasich will listen to the Supreme Court, the Sixth Circuit, and Judge Frost and halt further executions in Ohio,' Lorraine's federal public defenders said in a statement."  Listen to the Supreme Court?  You just told the Supreme Court not to decide the merits but to leave the merits to "the ordinary course of proceedings."

Let the course proceed.


Federal courts should simply be out of the state execution business.

Mississippi completed its execution after the Fifth Circuit lifted the stay:


Hard to know what the dissenting judge was thinking. Mississippi sets dates relatively quickly after years of appeals. It seems to me to be unacceptable that a federal court would, after habeas appeals were complete, have anything to say about when a state set an execution date. Of course, when it comes to the death penalty, many federal judges seem to lose an appreciation of their role.

In this case, the condemned went to the Mississippi Supreme Court claiming that he had a right to a mental evaluation. He lost. He should have been barred by res judicata from relitigating the issue in federal court.

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