Why Smith Equal Protection ruling and execution stay in Ohio is a huge (and national?) new death penalty story
As noted in prior posts here and here, U.S. District Court Judge Gregory Frost this morning issued a ground-breaking ruling which stays an execution based on a death row defendant’s Equal Protection claim concerning how Ohio runs its machinery of death. Though only formally dealing with only one planned execution in one state, the fundamental constitutional claims and basic litigation approach driving the Smith ruling makes the case huge for Ohio and possibly for every other state that regularly executes condemned murderers. Let me explain.
First, the Smith ruling (60 pages long, available here) is based on Equal Protection constitutional claims that seem applicable to any and every person subject to execution in Ohio. As noted in this recent post, Ohio has scheduled execution dates for 11 inmates over the next year, and every one of these planned executions would appear to be in jeopardy in light of the Smith ruling. (Importantly, the Smith case is only at a preliminary posture, and a full trial of the issue is scheduled for later this year. Still, the imposition of an execution stay for one defendant pending this trial on the merits has implications for all those in Ohio’s execution queue.)
Second, the Smith ruling is premised in the developed evidence that Ohio’s written protocol for lethal injection executions is never followed exactly and is often modified “on the fly.” As regular readers surely know, this problem is hardly unique to Ohio: because of the historic challenges of getting qualified and experienced medical persons to help conduct executions, as well as recent challenges in getting supplies of needed execution drugs, I suspect that many (if not all) states that conduct executions rarely follow written execution protocols exactly and often must modify these protocols “on the fly.” Thus, the Smith ruling not only likely blocks all future executions in Ohio, it possibly raises new constitutional questions about what is going on in many other states with active death chambers.
I quite doubt that many judges (either in state or federal courts) will be very eager or swiftly able to follow the lead of the Smith opinion and readily declare Equal Protection problems with other state execution practices. But I am quite certain that many defense attorneys with capital clients facing upcoming executions will be very eager and swiftly able to take cues from the Smith opinion and readily argue (both in state and federal courts) that potential Equal Protection problems with state execution practices demand a stay and additional litigation before any more executions proceed.
Some recent related posts:
- Federal district judge finds Equal Protection Clause violated by Ohio’s injection processes
- New Ohio lethal injection ruling provides lessons in litigation realities, the rule of law and a law of rules
- Ohio’s queue for executions now 11 deep and more than a year long
- Georgia execution raising new questions (and more litigation) about new drug protocols
- DOJ gets in way of Arizona execution based on illegal acquisition of lethal injection drug
- Mississippi joins growing number of states with success using new execution drug