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Untested Procedures Cannot Solve Ohio's Death Penalty Problems

Mike Brickner,
ACLU of Ohio
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December 8, 2009

(Originally posted on Daily Kos.)

I’ve heard the expression, “It’s like rearranging the chairs on the deck of the Titanic” many times to describe someone’s ambivalence towards a monumental problem, but it has never rung as true as it does today.

Less than three months after the unprecedented failed execution of Romell Broom, in which officials had to abandon the procedure because they could not locate a viable vein, the state has reopened its death chamber. At 11 a.m. on December 8, 2009, Kenneth Biros was executed using an untested, experimental one-drug protocol devised by the state in the weeks following Broom’s botched execution. The state publicly unveiled the procedure in late November, giving them only a few weeks to implement it and train the execution team on the new protocols.

Proponents of the death penalty hailed the new protocols as a major advancement towards error-free executions. The proclamations were eerily reminiscent of proponents’ original reaction when lethal injection was first implemented decades ago. However, if we have learned anything from the botched executions that have taken place since then, it is that there is simply no humane way to kill a person.

Ohio has still not addressed the underlying problems with its lethal injection procedures nor the overall death penalty system. After three botched executions in as many years, it is painfully clear the state’s execution team is simply not qualified to handle problems when the procedure goes awry. Those who carry out the execution only have the bare minimum of medical training, as no doctor or nurse will serve on the team. Now that the state has implemented an experimental procedure, the chances are even greater that unexpected complications will arise that the execution team will not be equipped to resolve.

Lost in the debate around lethal injection procedures has been the state’s failure to resolve the core issues of fairness that have been raised in studies by the League of Women Voters and Associated Press (PDF), and American Bar Association. Each of these studies have found that defendants are more likely to receive the death penalty based on their race, the race of their victim, the county where the crime was committed, and their socioeconomic class. In addition, the studies have raised serious concerns about Ohio capital punishment defendants’ access to adequate legal services, overall due process rights, lack of guidelines for the state to maintain biological evidence, and a host of other issues.

The net result has been the creation of a perfect storm in Ohio where any number of terrible tragedies may occur if officials continue to blindly support the death penalty. The stakes are simply too high for us to wait until the next botched execution or even the death of an innocent person to address the fundamental flaws in our death penalty system.