U.S. Supreme Court's decision brings execution of prisoners in Ohio to halt
February 9, 2012
By Reginald Fields
The Plain Dealer (Cleveland)
COLUMBUS, Ohio — A U.S. Supreme Court decision on Wednesday has effectively put executions on hold in Ohio.
Until Ohio revises its lethal injection procedures to the satisfaction of a federal judge on the case, no more inmates will be executed, Ohio Attorney General Mike DeWine acknowledged.
"I can't predict what is going to happen," said DeWine, whose office represents Gov. John Kasich and the Ohio Department of Rehabilitation and Correction. "The next scheduled execution is for April, and so that's a little ways off, and we'll just see what happens between now and then."
Kasich and DRC had appealed two federal court rulings that had blocked the scheduled Jan. 18 execution of a Trumbull County double murderer. But the Supreme Court, without explanation, declined to hear the case, letting the lower court rulings stand.
That means the stay of execution granted to Charles Lorraine by a district judge and upheld by a federal appeals panel will remain in place. Lorraine is one of about a dozen death row inmates suing the state, claiming Ohio's lethal injection procedures are unconstitutional.
lorraine.jpgOhio Department of Rehabilitation and Correction via APCharles Lorraine
With that case pending, Ohio had continued to execute inmates. But Lorraine successfully argued that the question of whether the procedures are unconstitutional could have merit and he should be allowed to live long enough to participate in a trial.
The court rulings to this point involve only Lorraine's request to stave off execution and not on whether Ohio's execution process passes constitutional muster.
"The evidence we've presented makes it substantially likely that Lorraine would win at trial," said the inmate's attorney Allen Bohnert, a federal assistant public defender. "So as a result of that and some other factors, fairness says he should be able to participate in that trial which would be impossible, obviously, if he had been executed on Jan. 18."
Bohnert said that Kasich should make a moratorium on executions official in view of the ruling.
The original order was issued by U.S. District Judge Gregory Frost of the Southern District of Ohio. Frost has handled several cases questioning Ohio's death penalty procedures in recent years and ordered changes. He didn't hide his frustration with the state for how it has handled this issue.
"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," Frost wrote in his scathing Jan. 11, 2012 ruling in favor of Lorraine.
In particular, Frost said the state deviated from its own procedures in a recent execution by permitting start and finish times to be announced by someone other than the designated person, allowing a pharmacist instead of a corrections officer to record the drugs being used, and failing to review the condemned prisoner's medical records as required the day before execution.
Frost said this means Lorraine is "likely to prove unconstitutionality and prevail in this litigation."
The state appealed to the U.S. Sixth Circuit Court of Appeals, saying that none of the items -- which it called "deviations" -- noted by Frost would mean Ohio's procedures are unlawful, so Lorraine's execution should be carried out.
"The district court failed to find that the state's deviations in the prior execution resulted in severe pain constituting cruel and unusual punishment, or threaten to result in severe pain to Lorraine himself," the state wrote on Jan. 12.
The appeals court backed Frost.
DeWine said DRC was already revising its execution procedures even before the Supreme Court was asked to review Lorraine's case. And while the state was making changes, DeWine said he still sought to carry out Lorraine's execution because he didn't agree with Frost's ruling.
"We believe that the discrepancies cited by Judge Frost do not rise to a constitutional violation," DeWine said.
DeWine said when DRC completes its revision of the procedures he will present them to Frost, who must sign off on them before executions can resume.
Lorraine was sent to death row in 1986 for burglarizing and fatally stabbing an elderly couple, Raymond and Doris Montgomery.