Ohio death penalty protocol

ABC News last Friday reported the decision by U.S. District Judge Gregory Frost ending an unofficial death penalty moratorium in Ohio dating back to November, with his denying the motion for a temporary restraining order and preliminary injunction staying the execution of Mark Wiles next week.

ABC notes Judge Frost has never found Ohio's execution process unconstitutional, meaning the delays have been based on technical questions about lethal injection & procedure. Last Wednesday he summed the situation up "The protocol is constitutional as written and executions are lawful, but the problem has been Ohio's repeated inability to do what it says it will do. As a result, this Court has dealt with inmate challenges to the constitutionality of Ohio's execution protocol for close to eight years. During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations. And as this Court has previously stated, "Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reforming its protocol when called on that conduct, and then failing to follow through on its own reforms."

"The Court is admittedly skeptical about Ohio's ability to following through on its latest reforms," Frost wrote, "Wiles in turn has at best presented evidence suggesting that it is an even question whether Defendants can or will do what they are telling this Court they will do. Defendants have presented evidence that suggests that the scale tips in their favor on this issue. The burden of proving entitlement to a stay falls on Wiles, and he has fallen just short of meeting that burden. This Court is therefore willing to trust Ohio, just enough to permit the scheduled execution.

"The Court reaches this conclusion with some trepidation, given Ohio's history of telling the Court what Defendants think they need to say in order to conduct executions (or in convincing themselves that things are fine enough when they are not) and then not following through on promised reforms. As in prior injunctive relief decisions, the Court does not conclusively hold here that Ohio’s method of execution practices are constitutional or unconstitutional. Today’s decision only recognizes that based on all of the record evidence, Wiles has not met his burden of persuading this Court that he is substantially likely to prove unconstitutionality and prevail in this litigation."

The University of Pittsburgh Law School’s Jurist also had an article.