Ohio Judge: Revise Lethal Injection Protocol

In the wake of Baze v. Rees, many states are looking over their lethal injection protocols and death penalty statutes to winnow out any possible flaws or snags. In Ohio, a state court judge pointed out that the language of the Ohio law requires that Ohio's method of lethal injection be changed from the three-drug cocktail to a single strong drug (NY Times):

The Ohio judge, James M. Burge of the Lorain County Court of Common Pleas in Elyria, appeared to concede that a constitutional challenge to the Ohio protocol would fail under Baze. Judge Burge based his decision instead on an Ohio law requiring that lethal injections use “a drug or combination of drugs of sufficient dosage to quickly and painlessly cause death.”

Baze, Judge Burge wrote, said the Constitution did not require the avoidance of all risk of pain. The Ohio law, by contrast, he said, “demands the avoidance of any unnecessary risk of pain and, as well, any unnecessary expectation by the condemned person that his execution may be agonizing or excruciatingly painful.”

At first glance, it appears that Indiana does not have the same "avoidance of all risk of pain" clause in its own execution statute (Indiana Code 35-38-6-1). It remains to be seen if this decision will hold up or crop up in other states due to statutory language.