“It is the policy of the State of Ohio that the State follows its written execution protocol, except when it does not.”
At least so commented South Ohio District Court Judge Gregory Frost last Monday in granting Kenneth Smith’s temporary restraining order halting his scheduled execution next week. ( Order )
“It is the most fundamental expression of the principles, rights, and obligations that define this country,” Judge Frost wrote “No governmental actor should ever disregard its dictates and prescriptions in this or any other context to fulfill any sense of perceived duty. It is wholly lawful to execute capital inmates. It is wholly unlawful to even attempt to do so in a manner that violates the Constitution.
“….There is no doubt that Ohio can lawfully execute those inmates condemned to capital punishment. But there is equally no reasonable debate over whether the Constitution confines the means of implementing that end. It does. 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 Court in this instance was not considering the constitutionality of Ohio’s death penalty, only whether Smith’s contentions regarding the State’s deviations from its declared protocol merited his execution being postponed, giving him the opportunity to continued participation in that larger endeavor.