County Common Pleas Judge James Burge can proceed with hearings on the constitutionality of the lethal injection process used to execute condemned inmates in Ohio, the state’s highest court ruled Wednesday.
In a 5-2 decision, the Ohio Supreme Court ruled that Burge could proceed with his review, despite objections from prosecutors and Ohio Attorney General Marc Dann, who contend that the issue of its constitutionality should only be dealt with after a conviction.
Burge said the Ohio Department of Rehabilitation and Correction has yet to comply with his order to turn over detailed information on the equipment, drugs, process and training used in the state’s execution process that defense attorneys have requested.
Burge agreed earlier this year to review whether the state’s method of executing prisoners violated the constitution’s ban on cruel and unusual punishment at the request of accused killers Ruben Rivera and Ronald McCloud. Other accused murderers in the county have filed similar requests with other county judges.
Jeff Gamso, the legal director of the Ohio chapter of the American Civil Liberties Union and an attorney for both Rivera and McCloud, praised the decision. He said the state appears to be trying to keep its methods of executing prisoners a secret.
“They’re saying ‘No, you can’t know how we maintain the equipment,’” Gamso said. “Why not? What’s the big secret? They think we’re not allowed to know. The people in Ohio, whose name they’re executing people in, aren’t allowed to know.”
County Prosecutor Dennis Will said his position hasn’t changed, despite the Ohio Supreme Court ruling.
“We’ll have to see what happens in the hearing, but our position is that it’s not ripe for consideration,” he said.
Burge said he will proceed with the hearings despite the fact that the U.S. Supreme Court is reviewing the lethal injection process used in Kentucky, which has created a virtual moratorium on executions throughout the country.
Ohio law holds executions to a higher standard than the U.S. Constitution, requiring that they be “quick and painless,” Burge said, meaning he could still prevent Rivera and McCloud from being executed no matter what the U.S. Supreme Court decides.
“If the Supreme Court rules it’s not cruel and unusual, I might decide it’s not painless and quick,” Burge said.
Whatever Burge ends up deciding on the constitutionality of lethal injection, his decision will likely be appealed and could reach the Ohio Supreme Court.
Critics of the lethal injection process argue that the three-drug cocktail used in executions in Ohio, Kentucky and virtually every other state that has lethal injection might not be an efficient killer. The drugs are supposed to put the condemned inmate to sleep before paralyzing him and inducing a heart attack.
But there’s no guarantee that the inmate will remain unconscious throughout the entire process and could die painfully, but remain paralyzed and unable to cry out, the critics contend.
State officials argue that there’s no evidence inmates have suffered during their executions, which they have called constitutionally sound. Will said lethal injection has already survived several legal challenges in the courts.
Burge, a former defense attorney, has said while he’s torn in his position on the death penalty, he could impose it if a jury decided the punishment fit the crime. In April, Burge pushed his former client, James Filiaggi, to make a last-minute push to avoid execution, a move that ultimately failed to win a stay for Filiaggi, who had been sentenced to death for killing his ex-wife.
Filiaggi had sought to join a federal lawsuit, similar to the one being considered by the U.S. Supreme Court, that was brought by several inmates on Ohio’s death row, which is still pending.
Contact Brad Dicken at 329-7147 or firstname.lastname@example.org.