Following a botched execution in September and barring a successful legal challenge, Ohio will today become the first US state to execute a death row inmate with only one drug.
The move has raised a host of legal and ethical issues with critics saying Kenneth Biros, sentenced to death for killing and dismembering a 22-year-old woman in 1991, is a human guinea pig being subjected to an untested procedure.
Those in favor say the new method will be more humane and efficient than the three-drug cocktail used in 34 of the 35 other states where capital punishment is still practiced in the US.
“It is a unique execution protocol in the country,” said Julie Walburn, the state prison spokeswoman for Ohio, which switched to the new method last month after a disastrous attempt to execute Romell Broom.
Executioners spent two hours searching for a vein to inject Broom — convicted of the rape and murder of a 14-year-old girl — failing 18 times to insert a needle before giving up.
All executions were put on hold while the state searched for an alternative to the old method, which used one drug to anesthetize, another to paralyze and a third to stop the heart.
Ohio now plans to use just the anesthetic drug, thiopental sodium, but in doses that are two and a half times bigger than the amount currently administered.
The new protocol also includes a back-up option that means executioners can deliver an intramuscular injection containing massive doses of two chemicals, a sedative and a painkiller, if they cannot find a vein.
The process can be repeated three times until the prisoner
is dead.
Opponents of the three-drug method say it is cruel because the inmate can suffer extreme pain if the first drug fails to
work properly.
But a lawyer for 51-year-old Biros described the new method as no more than “human experimentation” as he issued an appeal to Ohio Governor Ted Strickland for a second emergency stay of his client’s execution.
UNCHARTED TERRITORY
“The newest protocol calls for the use of drugs and methods that have never been used in an execution in the history of the US or any other civilized country,” the plea said.
The court filing argues that
the unknown consequences of
the new methods make the protocol a violation of the constitutional prohibition on “cruel and unusual punishment.”
A federal judge has already granted Biros one stay of execution, in the wake of the Broom fiasco, based on previous arguments that the three-drug cocktail was a violation of the same constitutional rights.
Biros, whose execution is bound to be watched with interest by other US states, could still be granted a second stay if doubts about the new, untried method are adjudged to be valid.
Defense lawyer Timothy Young said he had concerns about the new protocol, in particular over when to begin using the two-drug intramuscular injection. “Who is going to make the decision to switch? After how long?”
Terry Collins, head of the Ohio Department of Rehabilitation and Correction, who has presided over 31 of 32 executions in the state since 1999, dismissed lawyers’ doubts as a “smoke screen” aimed at trying to “cloud the issue.”
It is only “technically true” that the use of the one drug for executions is new, said Collins.
“It’s not an experiment drug, it’s used in existing protocol and it’s used in hospitals all across this nation and in the world” to anesthetize people before surgery, he said.
Biros was originally to be executed in March 2007, but the US Supreme Court put his execution on hold at the eleventh-hour because of a federal suit challenging lethal injection procedures.
He is therefore one of the few inmates to be making a return journey to the Southern Ohio Correctional Facility in Lucasville, known as “Death House”, where those awaiting execution spend their last hours.
The US Supreme Court upheld the constitutionality of lethal injection in a landmark ruling
last year.
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