COLUMBUS — The state doesn't follow its execution policy faithfully enough to warrant ending challenges over the constitutionality of lethal injection in Ohio, attorneys for several death row inmates argue as a federal judge weighs the state's request to stop an ongoing injection lawsuit.
One challenge for defense lawyers trying to keep the lawsuit alive: Ohio has successfully conducted several executions since switching to a new one-drug system, including three executions this year involving a new barbiturate.
In other states, "some lawyers are saying what's being done in Ohio should be required in their state," said Richard Dieter, executive director of the Washington, D.C.-based Death Penalty Information Center, which opposes capital punishment.
In a series of filings earlier this week, attorneys for inmates with executions scheduled this year and next say the state still hasn't created a system free from the risk of cruel and unusual punishment.
For example, they argue that the state doesn't always have the required number of execution team members working the day of an execution.
They also say the state sometimes skips the mandatory assessment of inmates' veins to be sure IVs can be properly inserted.
As a result, inmates "will experience an undignified, spectacle execution with a substantial risk of severe physical and mental pain if Defendants attempt to execute them as planned," attorneys argued in the Monday filing in federal court.
Ohio is scheduled to execute Kenneth Smith July 19 for his involvement in the slaying of a husband and wife in their Hamilton home in 1995 during a robbery.
Smith's attorneys on Thursday asked the Ohio Parole Board to recommend he be spared. They say Smith, 45, grew up in a highly dysfunctional household with a violent, alcoholic father and a mother who had multiple affairs.
"Life in the Smith household was characterized by alcohol, drugs and strife," the attorneys said in a filing presented to the board. "There was no one to provide any type of safety or security for any of the four children."
Butler County Prosecutor Michael Gmoser (MO'-zure) said the state should not show mercy for a man who didn't show mercy to his victims.
"The Board should not recommend clemency for a man who planned and carried out the murders of two people for the sole purposes of robbing them and avoiding detection," Gmoser said in a filing presented to the board.
Should Smith's execution proceed, the state is making accommodations to allow his final statement since Smith has had his larynx removed since he was incarcerated and uses an artificial voice box.
The state argued last month that this gesture of flexibility is one more reason U.S. District Judge Gregory Frost should dismiss a lawsuit challenging Ohio's execution procedures.
In recent years, federal courts have rejected most of the arguments against Ohio's injection process, based on a 2008 decision by the U.S. Supreme Court that upheld injection as a method in a Kentucky case.
The state argues that, with the exception of arguments about the newly adopted barbiturate, pentobarbital, death row inmates are renewing claims that have already been denied.
For Smith's execution, the state will raise the head of the gurney where Smith will lie about four inches and let him keep one arm free to make it easier to use his voice box, according to a May affidavit by Edwin Voorhies, South Regional Director for the Department of Rehabilitation and Correction.