Today was a complicated day for Ohio. Specifically, it was a complicated day for those officeholders responsible for implementing and judging Ohio’s death penalty process — and for those seeking an insight into the future of Ohio’s death penalty.
In recent months, Governor Ted Strickland (D) has overruled his Parole Board’s recommendation to grant clemency to Jason Getsy, who was executed on Aug. 18, and finally put a stop to the attempted execution of Romell Broom on Sept. 15 after the execution team failed over a two-hour period to access a vein to inject him with the lethal drugs. The botched attempt at executing Broom led the editorial board of The New York Times to state that “every state should use this shameful moment to question whether they ought to be putting people to death at all.”
And today did begin with the U.S. Court of Appeals for the Sixth Circuit issuing a stay of the scheduled execution of Lawrence Reynolds, yet another Ohio Death Row inmate.
The 2-1 panel opinion from the Sixth Circuit would have put a halt to the October 8 execution of Reynolds. Ohio Attorney General Richard Cordray (D), however, took quick action to attempt to keep the execution on schedule by asking the U.S. Supreme Court to lift the stay. Before the Supreme Court could take action on the request, though, Strickland granted a reprieve that put off the execution for several months — but did nothing to answer the current questions surrounding Ohio’s implementation of the death penalty.
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In the Sixth Circuit opinion (pdf), Judge Boyce Martin, noted that the state has “experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom.” He went on to describe the potential constitutional questions raised by these difficulties and noted that U.S. District Court Judge Gregory Frost is to consider those issues regarding Broom. Martin went on:
Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.
As such, the opinion would have effectively stayed Reynolds’ execution until Judge Frost heard and considered the validity of Ohio’s implementation of its execution protocol in regards to Broom and Reynolds.
Judge Cole concurred in this opinion, and Judge Sutton dissented. Cole sensibly noted:
[T]he State has agreed not to attempt another execution of Broom until the district court can reconsider the matter. In this context, where allowing the process to run its course could result in the severest of consequences, it is more prudent to allow the district court to take these new circumstances into consideration [for Reynolds as well].
Judge Sutton, a reliably conservative* judge, dissented in allowing the stay because he is “not persuaded” that the “recent failed Broom execution” creates a Supreme Court claim “with any prospect of success.” Sutton additionally was concerned that due to the blanket nature of the majority’s opinion, he feared the ruling would result, effectively, in a blanket moratorium on executions until the Broom case was resolved. In explaining that, however, Sutton appeared also to make clear his displeasure with Ohio’s recent implementation of the death penalty. Sutton wrote:
No doubt, the Governor himself has the right to impose a moratorium. And a case could be made that it would be reasonable to do so. But the question is whether the Eighth Amendment requires the Governor to take this approach. A reasonable thing to do is not necessarily a constitutionally mandated thing to do. . . .
As an individual, I might prefer to live in a State that does not have a death penalty or at least one where it is less frequently imposed. But the Constitution allows the people to make policy mistakes, if policy mistakes they are, and correct them for themselves over time, and we should let that process run its course unless or until their representatives cross a cognizable constitutional limit.
The majority held that there was a possibility that such a limit already had been exceeded and, hence, the stay was issued.
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Soon thereafter, Ohio Attorney General Richard Cordray — who has inserted himself into the death penalty process and death penalty discussions repeatedly in his brief tenure as attorney general to support the death penalty — filed an application (pdf) in the U.S. Supreme Court seeking to vacate the stay. He wrote:
The Governor of Ohio could conceivably determine that the executions of prisoners like Reynolds scheduled in the future should also be delayed, pending further review of the State’s procedures. By the same token, the State’s interest in the execution of final criminal judgments is compelling, and such interest could reasonably be found to override the indefinite delay of future executions, for the possible overhaul of procedures that are constitutionally adequate. What is important is that the State be free to make these critical choices, where a federal court’s stay of a prisoner’s execution is not justified as a matter of law.
Cordray argued, in other words, that the state’s interest in seeing its criminal judgments enforced “reasonably” could be found to be more important than delaying an execution due to take place while a trial court is examining the constitutional implications of a failed execution attempt in the state.
The matter, though, was put to rest before the Supreme Court could act on Cordray’s application because Governor Strickland took the step that both Judge Sutton and Attorney General Cordray mentioned by granting a reprieve to Reynolds until March 9, 2010.
The warrant itself is disconcerting in its mention of the details of the failed Broom execution — and the state’s response:
Nonetheless, and although not legally or constitutionally required to do so, since September 15, the Department [of Rehabilitation and Correction] has been working to establish a back-up or alternative lethal injection protocol that would be available should those responsible for carrying out executions for the State ever again be unable to access a sustainable vein at the time of an execution.
As such, Strickland granted the reprieve in order to allow DRC the time to establish and train for this back-up process. Strickland also granted a preemptive reprieve to Darryl Durr — whose execution was set for Nov. 10 — until April 20, 2010.
In response, Attorney General Cordray did issue a final volley today, via a statement:
In capital cases, we continue to press the state’s legal position in the courts and we are confident that it is sound. We understand that these reprieves have been granted on the basis of operational concerns and we respect that; but continue to think that, on legal grounds, the state’s position will ultimately be upheld.
After all that happened today, we are left in Ohio with a reprieve of upcoming executions but a desire on the part of the governor to resume executions as soon as DRC can devise and the execution team can be trained on “back-up” execution protocols and a belief on the part of the attorney general that, legally speaking, there’s not even a need for these temporary reprieves. And neither official is taking heed of The New York Times‘ recommendation to “question whether they ought to be putting people to death at all.”
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* = None of the judges’ ultimate conclusions on the panel are inconsistent with their ideological and/or judicial views. Judge Boyce Martin is extremely liberal, as an e-mailer noted, and Judge Cole’s opinion, ultimately, was not all that surprising. I only raised the issue of Judge Sutton’s general judicial disposition to explain why I was somewhat surprised by the comments he made about what might be a reasonable action for the governor to take and his personal views regarding the death penalty.
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