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New Ohio Lethal Injection Procedure Used on Killer

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By Javier Lavagnino, Esq. on June 03, 2009 1:55 PM

Daniel Wilson, a man who burned a woman alive after locking her in the trunk of her car, was executed in Ohio today. According to Reuters, the execution involved the use of a new execution procedure or protocol which the headline referred to as the "set-to-die" procedure.

That term might be a little confusing, because what the new procedure actually entails is a prison warden checking to make sure an inmate is "set to die" after they have been sedated by calling out the inmate's name, shaking his or her shoulder, and giving them a pinch to the upper arm. Of course, being set to die actually means that no response must be received from the inmate before they can get executed. This is because recent death penalty challenges to lethal injection have focused on the possibility that inmates undergoing the penalty were conscious and/or suffering from the administered protocol.

If inmates were conscious or in pain, then such a lethal injection method could be found to violate Eighth Amendment protections against cruel and unusual punishment. However, the Supreme Court recently upheld Kentucky's lethal injection protocol over inmates' claims that there was a significant risk that the lethal injection procedures would not be properly followed, resulting in possibly "excruciating" pain upon administration of fatal drugs.

So why did Ohio even bother changing its method? Although it might not seem to be required by any case law, it could simply be that authorities wanted to try to nip Eighth Amendment arguments in the bud by making it clear that inmates undergoing the protocol are, indeed, unconscious when the fatal (and potentially painful) drugs in the protocol are administered. The new rules also allow for extra doseage of the sedative to be administered, where necessary. Also, an earlier AP piece noted a suggestion that prior judicial criticism of Ohio's system motivated the changes.

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