Ohio Supreme Court rejects lethal injection challenge

The Jurist,, a Web-based legal news and real-time legal research service created in 1996 by University of Pittsburgh law professor Bernard Hibbitts as a clearinghouse of online legal materials authored by other law professors, eventually evolving to bridge the gap between the legal academy and the public, last week reported the Ohio Supreme Court’s rejecting of another challenge to the state's lethal injection method of execution. ( See Scott v. Houk )

A certified question from Ohio's Northern District Court asked whether there was "a post-conviction or other forum to litigate the issue of whether Ohio's lethal injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio law?” The Court, in a split 5-2 decision, answered that there was not.[ Scott’s motion to certify ]

The Court said it has held "opportunities for review more than satisfy defendants' "constitutional rights to due process and fair trials" while also protecting Ohio’s "inherent power to impose finality on its judgments," citing State v.Steffen (1994), 70 Ohio St.3d 399, 407, 412, 639 N.E.2d 67. "The Ohio General Assembly," the majority opinion stated, "has not yet provided an Ohio law cause of action for Ohio courts to process challenges to a lethal-injection protocol… Accordingly, until the General Assembly explicitly expands state review of death penalty cases by creating a methodology for reviewing Ohio's lethal-injection protocol, we must answer the certified question as follows: There is no state postconviction relief or other state-law mode of action to litigate the issue of whether a specific lethal-injection protocol is constitutional under Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law."

Dissenting were Chief Justice Eric Brown and Justice Paul E. Pfeifer. In that dissent Chief Justice Brown posited:

"[Ohio's] statutory right provides greater protection against pain and suffering than the Eighth Amendment against cruel and unusual punishment. The United States Supreme Court has explained that "[s]imply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm that qualifies as "cruel and unusual" under the Eighth Amendment. Baze v. Rees (2008), 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420, quoting Farmer v. Brennan (1994), 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811. In order for a petitioner to succeed on an Eighth Amendment challenge, he must show that an "alternative procedure [is] feasible, readily implemented, and [will] in fact significantly reduce a substantial risk of severe pain." Baze at 52. Thus, the burden on a petitioner to establish an Eighth Amendment violation is worlds apart from establishing a violation of the affirmative requirement in R.C. 2949.22(A) that the warden shall ensure that an execution be quick and painless"