On July 8 U.S. District Court Judge Gregory Frost stayed the upcom­ing July 19 exe­cu­tion of Ohio inmate Kenneth Smith because of the state’s incon­sis­tent appli­ca­tion of its lethal injec­tion process. Judge Frost called the state’s prac­tice ​“hap­haz­ard,” and said, ​“Ohio pays lip ser­vice to stan­dards it then often ignores with­out valid rea­sons, some­times with no phys­i­cal ram­i­fi­ca­tions and some­times with what have been described as messy if not botched exe­cu­tions.” Smith’s attor­neys argued that Ohio does not fol­low its own exe­cu­tion pro­ce­dures, stray­ing from the required num­ber of exe­cu­tion team mem­bers and fail­ing to doc­u­ment the mix­ing of drugs. According to the war­den of the Southern Ohio Correctional Facility, exe­cu­tions in January and May involved only one med­ical team mem­ber, rather than the required two. Frost did not rule on the con­sti­tu­tion­al­i­ty of Ohio’s death penal­ty statute, but held that Smith would like­ly pre­vail on a claim of unequal pro­tec­tion under the Fourteenth Amendment. He con­clud­ed, ​“The per­plex­ing if not often shock­ing depar­tures from the core com­po­nents of the exe­cu­tion process that are set forth in the writ­ten pro­to­col not only offend the Constitution based on irra­tional­i­ty but also dis­turb fun­da­men­tal rights that the law bestows on every indi­vid­ual under the Constitution, regard­less of the depraved nature of his or her crimes.”

The rul­ing couild affect oth­er sched­uled exe­cu­tions in Ohio as well. Ohio recent­ly changed its exe­cu­tion drug from sodi­um thiopen­tal to pen­to­bar­bi­tal. Other states have made a sim­i­lar change, but Ohio is the only state so far to use pen­to­bar­bi­tal alone to exe­cute an inmate. Seven oth­er states have used it as the first drug in a three-drug pro­to­col. Ohio began using a one-drug pro­to­col after the botched exe­cu­tion of Romell Broom. Execution offi­cials spent over two hours search­ing for a suit­able vein for the lethal injec­tion before then-Governor Strickland stopped the exe­cu­tion. Broom remains on death row, await­ing the out­come of an appeal.

(A. Welsh-Huggins, ​“Judge delays con­demned Ohio killer’s exe­cu­tion,” Associated Press, July 8, 2011.) See Lethal Injection, Ohio and Botched Executions.

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