Federal judge declares Ohio’s execution process unconstitutional

Though Magistrate Judge Michael Merz’s ruling is likely to be appealed, it points to a broader trend in concerns about the death penalty. New justice and economic arguments are also coming to the fore.

Kiichiro Sato/ AP/ File
In this November 2005 file photo, Larry Greene, public information director of the Southern Ohio Correctional Facility, demonstrates how a curtain is pulled between the death chamber and witness room at the prison in Lucasville, Ohio. Magistrate Judge Michael Merz in Dayton, Ohio, declared Ohio's new three-drug lethal injection process unconstitutional on Thursday, Jan. 26, 2017, and delayed three executions, including the execution of Ronald Phillips that had been scheduled Feb. 15, 2017.

As drugmakers increasingly refuse to sell their products for use in lethal injections, their decision is limiting the ability of states to carry out executions. And on Thursday, Ohio became the latest state with a set-back to its capital punishment, as a federal judge in Ohio declared the state’s lethal injection process unconstitutional.

As drug supplies have dried up, the state has been searching for alternative drug cocktails. But after a weeklong hearing, Magistrate Judge Michael Merz ruled against the new three-drug process, saying there was “substantial risk of serious harm,” putting Ohio at risk of violating the Eighth Amendment prohibition against cruel and unusual punishment. The decision delayed three executions, slated for February, March, and April.

The ruling is being reviewed, a spokeswoman for the attorney general’s office told the Associated Press, and the state is likely to appeal. But the circumstances of the judge’s decision indicate a broader movement against the death penalty, as corporations and individuals increasingly express concerns about the process, its costs, and the potential for discrimination.

“There’s been a real change in the way in which people are thinking about the death penalty,” Austin Sarat, a professor at Amherst College in Massachusetts and author of the 2014 book, “Gruesome Spectacles: Botched Executions and America’s Death Penalty,” told The Christian Science Monitor earlier this month. “This change in rhetoric has enabled a coming together of people who on moral and philosophical grounds may not agree at all.”

The limited availability of drugs is part of this shift in thought. European Union law prohibits selling drugs to US states for use in lethal injections, and several US companies, including Pfizer, have recently instituted similar policies. As a result, 13 drugs that could once have been used in lethal injection cocktails are no longer available.

Support for the death penalty is declining not only among companies, but also among individuals. Nineteen states and Washington, D.C., have abolished the practice, while others have moratoriums on capital punishment. In Ohio, for instance, executions were placed on hold after the botched execution of Dennis McGuire in January 2014. The problems are believed to have been caused by a two-drug cocktail the state used when companies refused to sell the usual drugs.

Overall, support has dropped from 80 percent 20 years ago to 49 percent in 2017, according to a Pew Research Center survey. That change is echoed by a drop in the number of death sentences handed down and carried out last year. According to the nonprofit Death Penalty Information Center, the 30 new death sentences handed down in 2016 were the lowest number since the Supreme Court reaffirmed the death penalty in 1976.

In Washington state, for example, where a bipartisan effort recently called for repealing the death penalty, financial and discrimination issues have created common ground.

"Death penalty sentences are unequally applied in the state of Washington, they are frequently overturned, and they are always costly," Gov. Jay Inslee said, according to the Associated Press.

In addition to concerns about drugs for the procedures, many critics highlight the geographic and racial disparities in the assignment of the death penalty. Though African Americans make up just 13.2 percent of the US population, they represent 34.5 percent of the executions since 1976. Concerns about a racial component to the punishment, as well as the possibility of wrongful sentences, have led many Americans to oppose it.

Capital punishment also brings financial costs. A 2015 Seattle University study found that the state spent about $1 million more on each death penalty case than on a case of life without parole.

"From a purely economical standpoint [following a repeal of the penalty], those additional costs would be opportunity costs that would be rerouted in the system and be spread out on other cases and other initiatives," Peter Collins, a criminal justice professor at Seattle University who authored the 2015 study, previously told the Monitor.

And moral arguments also hold some sway. While some advocates of capital punishment contend that the only way to punish horrific acts like murder is with the death penalty, others suggest that another death is not the answer.

"A government’s job is to preserve life, not compound a terrible wrong by taking another life," the Monitor's Editorial Board wrote in 2010. "A death sentence cuts off the opportunity for redemption and leans on an outdated concept of justice based on revenge."

This report contains material from Reuters and the Associated Press.

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