High court rules Ohio's execution method not a normal 'rule'
Oct. 19—COLUMBUS — Ohio's protocol as to how it puts condemned inmates to death is not a normal rule subject to the state's rule-writing process involving months of public comment, hearings, and legislative review, the state Supreme Court unanimously said Tuesday.
The high court rejected arguments from two inmates scheduled to die by lethal injection in 2023 — Cleveland Jackson, 43, formerly of Lima, and James D. O'Neal, 67, formerly of the Cincinnati area — that the execution method used by Ohio is invalid because it didn't go through that process.
"The execution protocol ... has little in common with the kind of edicts that we have found that fit within the statutory definition of 'rule'," Justice Patrick Fischer wrote. "...It creates neither a "legal standard," nor a "legal obligation'.... [It] does not expand anyone's functions or abilities; the obligation to execute death sentences by lethal injection is already conferred on [the Department of Rehabilitation and Correction] by statute, and the protocol 'is merely the implementation ... of a rule already in existence'."
Justice Fischer described the policy dictating such things as the specific drugs used, the inmate's "special meal," training, visitation, and the prisoner's last words as a 21-page, step-by-step "instruction manual."
"Executions are not routine occurrences," he wrote. "Since 1999, Ohio has carried out or attempted to carry out 58 death sentences.... An operation or procedure that is performed on average fewer than three times a year is hardly a 'day-to-day' occurrence under any definition. It follows that the execution protocol ... is not an 'internal-management rule' as defined in [state law]."
Jackson is on death row at Chillicothe Correctional Institution for opening fire, along with half-brother Jeronique D. Cunningham, on eight people corralled into a Lima apartment kitchen during a 2002 robbery. Two girls, ages 3 and 17, were killed.
O'Neal, 67, was convicted of killing his estranged wife in Madisonville in 1993.
Lethal injection is the sole method of execution under state law, but the corrections department determines the means for carrying that duty out. The protocol has, however, been subject to court review.
While disappointed in the final outcome, O'Neal's Columbus attorney, S. Adele Shank, said the high court's decision was significant in that it upheld the standing of the incumbents to legally challenge the process and rejected the state's contention that DRC wasn't obligated to develop a protocol in the first place.
"The state argued that the case should not even have been heard, that the court didn't have jurisdiction because the state felt inmates didn't have the right to question the process being used to carry out executions," she said. "The Ohio Supreme Court said they do have standing, and it was a legitimate case before the court."
Ohio Attorney General Dave Yost's office, which defended the protocol, said it is reviewing the decision.
The lethal injection process involves the use of three specific drugs — one to render the inmate unconscious, the second to paralyze, and the third to induce cardiac arrest. But the process has not been used in then nearly three years since Gov. Mike DeWine took office. The last execution took place in July, 2018 under then Gov. John Kasich.
The state has struggled to obtain its preferred drugs because their manufacturers object to their use in putting people to death and have threatened to withhold those drugs from the state for other purposes. That has led Mr. DeWine to routinely issue reprieves postponing executions.
The governor has said that the death penalty's effectiveness as a deterrent against crime has waned. He has suggested lawmakers might consider an alternative method, but he has not led the way developing one.
First Published October 19, 2021, 9:51am
