ANDREW WELSH-HUGGINS
Associated Press
COLUMBUS, Ohio - A look in question and answer form at the Ohio version of a lawsuit that has been brought in several states challenging the constitutionality of lethal injection:
Q: What does the lawsuit allege?
A: Ohio's lawsuit, like those in other states, claims that death by injection violates the constitutional ban on cruel and unusual punishment because inmates could suffer extreme pain during the process.
Q: How are the chemicals supposed to work?
A: In Ohio and elsewhere, states use three chemicals: sodium pentothal, pancuronium bromide and potassium chloride. The first drug is a painkiller, which death penalty opponents have argued can wear off too soon. The second drug paralyzes the inmate and the third causes a fatal heart attack.
Q: What is the history of the lawsuit in Ohio?
A: Death row inmate Richard Cooey, sentenced to die for raping and killing two female University of Akron students in 1986, brought the original complaint in 2004. He alleged the current procedure would amount to him being tortured to death.
Q: How many inmates have joined the lawsuit?
A: Judge Gregory Frost of U.S. District Court, Southern District of Ohio, has allowed 14 death row inmates to join Cooey.
Q: Is there any evidence that injection is painful or produces the kind of suffering that inmates allege?
A: Researchers in April in the online journal PLoS Medicine published an article cited by Frost suggesting that the drugs sometimes fail to work as planned, causing slow and painful deaths. The analysis looked at 33 North Carolina executions and reviewed execution data from California, Florida and Virginia. Other researchers maintain the amount of anesthesia is sufficient to cause inmates to lose consciousness and stop breathing within one minute.
Q: How has the inmates' argument been received by the courts?
A: Frost has noted a growing body of evidence calling the injection process like the one used in Ohio into question, including a 2006 ruling by a federal judge that found potential constitutional violations by California's injection procedures. But Frost has also said the potential flaws in Ohio's injection process "are readily fixable."
Q: What experience have inmates in other states had with similar lawsuits?
A: In Delaware, a federal judge in February allowed all inmates on death row - currently 18 - to join that state's injection lawsuit, while similar lawsuits in California and Missouri have put all executions on hold. A federal lawsuit is also pending in Maryland where executions are on hold after a state appeals court said the state didn't properly adopt new injection procedures.
Q: Has the U.S. Supreme Court looked at the issue before?
A: In June 2006, the high court voted 9-0 to allow Florida death row inmate Clarence Hill to challenge that state's use of the chemicals under a civil rights motion. However, Hill was executed in September 2006 after a district court in Tallahassee and an appeals court in Atlanta refused to hear those challenges, ruling that Hill should have filed earlier. The U.S. Supreme Court voted 5-4 to deny another delay.
Q: What is the main issue being debated in Ohio?
A: Before the arguments about injection itself can be visited, inmates must first persuade the federal courts they filed their lawsuit in a timely way. Earlier this year, an appeals court ordered the lawsuit dismissed over a statute of limitations issue but delayed that order to allow an appeal of that issue to the U.S. Supreme Court.
Q: What are the arguments over the statute of limitations?
A: The 6th U.S. Circuit Court of Appeals panel said Cooey should have filed the lawsuit at the exhaustion of his state appeals in 1995. The state public defender's office argues that the statute of limitations starts when federal appeals are complete.
Q: Can the act of joining the lawsuit prevent the state Supreme Court from setting an execution date?
A: The state court could still set a date but it's up to the federal courts to decide whether the executions would go forward. In recent months Frost stopped executions of Kenneth Biros of Trumbull County and Clarence Carter of Hamilton County after allowing them to join the lawsuit. But Frost also stopped the execution of Jeffrey Lundgren of Lake County, only to see the 6th U.S. Circuit Court of Appeals overturn his decision and allow the execution to proceed.
Q: Are all inmates who apply to join the lawsuit accepted?
A: Not necessarily. Frost denied a request by James Filiaggi of Lorain County, saying he didn't file properly. Filiaggi was executed in April.
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