In re Ohio Execution Protocol Litig.

• Decision Date: 04 April 2012
• Docket Number: No. 2:11–cv–1016.,2:11–cv–1016.
• Citation: 868 F.Supp.2d 625
• Parties: In re OHIO EXECUTION PROTOCOL LITIGATION. This document relates to: Mark Wiles.
• Court: U.S. District Court — Southern District of Ohio

868 F.Supp.2d 625

In re OHIO EXECUTION PROTOCOL LITIGATION. This document relates to: Mark Wiles.

No. 2:11–cv–1016.

United States District Court,

S.D. Ohio,

Eastern Division.

April 4, 2012.

OPINION AND ORDER

GREGORY L. FROST, District Judge.

Can Ohio now be trusted?

The context surrounding this question necessarily starts with the axiomatic proposition that the United States Constitution does not require a perfect execution. Its protections do not require perfect adherence to every single provision of Ohio's execution protocol without deviation, much less perfect adherence to every protocol provision in training sessions. But the Constitution does require that Ohio apply its protocol in a manner that does not offend constitutional protections.

Ohio has routinely offended these protections.

These offenses have not been simple errors of no importance. Mistakes happen. The random misadventure that can result when Ohio errs by not following its protocol may be regrettable but constitutional, depending upon the circumstances involved. What is not constitutional is a policy of sporadic adherence to the execution protocol that allows if not endorses institutional incompetence and presents aberrational state conduct endangering rights the Constitution confers on everyone, no matter how heinous a crime an inmate has committed. Thus, although Ohio does not need to follow each step in its protocol in an identical manner in every execution the state conducts, Ohio does need to apply the protocol under the same set of permissible overarching rules for each capital inmate.

Ohio argues that regardless of what happened in the past, the state can now be trusted to do the right thing.

Against this backdrop, the captioned case is before the Court for consideration of Plaintiff Mark Wiles' motion for a temporary restraining order and a preliminary injunction (ECF No. 84) and Defendants' memorandum in opposition (ECF No. 95). Plaintiff seeks a stay of his scheduled April 18, 2012 execution, while Defendants seek to persuade this Court once again that they are able to implement Ohio's execution protocol in a constitutional manner.

Ohio has time and again failed to follow through on its own execution protocol. The protocol is constitutional as written and executions are lawful, but the problem has been Ohio's repeated inability to do what it says it will do. As a result, this Court has dealt with inmate challenges to the constitutionality of Ohio's execution protocol for close to eight years. ¹ During that time, the litigation has morphed from focusing primarily on allegations of cruel and unusual punishment to allegations of equal protection violations. And as this Court has previously stated, “Ohio has been in a dubious cycle of defending often indefensible conduct, subsequently reformingits protocol when called on that conduct, and then failing to follow through on its own reforms.” In re Ohio Execution Protocol Litig. (Lorraine), 840 F.Supp.2d 1044, 1046 (S.D.Ohio 2012). Ohio has now come forward with yet another set of reforms to its practices that it assures this Court will remedy the state's unconstitutional conduct.

The Court is admittedly skeptical about Ohio's ability to following through on its latest reforms. At the heart of these reforms is Ohio's promise that newly implemented chain-of-command and documenting procedures and a renewed if not newfound commitment to conducting constitutional executions finally mean that the state can carry out executions in a constitutional manner.

Thus, the question before the Court is whether it should believe Ohio's latest round of promises. If this Court cannot, then the end result is a stay of the Wiles execution based on analysis that will likely lead to a court-ordered moratorium on executions in Ohio. If this Court does believe Ohio, then the state can proceed to execute Wiles and this Court will soon learn whether it erred in believing Ohio once again and perhaps one time too many.

The answer to the foregoing question turns on the burden involved. Wiles has the burden of convincing this Court that Ohio cannot be trusted, even in light of the new facts presented to the Court. Because he has failed to meet that burden, with the evidence nearly if not completely equally balanced on whether this Court can trust Ohio, Ohio can proceed to fulfill its lawful duty to execute Wiles.

I. Background²

This litigation is a 42 U.S.C. § 1983 civil rights action brought by multiple inmates who challenge various facets of the execution protocol used by the State of Ohio. Most recently, various plaintiffs have sought to obtain stays of their execution dates based on claims that Ohio's execution protocol and practices violate the Equal Protection Clause of the United States Constitution.³

The Court issued one such stay in a July 8, 2011 decision in which it set forth at length numerous deviations by state actors from the state execution protocol then in effect, including core deviations that subverted the key constitutional principles that control the execution process. Cooey (Smith) v. Kasich, 801 F.Supp.2d 623 (S.D.Ohio 2011). This Court enjoined Ohio and any person acting on its behalf from implementing an order for the execution of Plaintiff Kenneth Smith until further Order from the Court.

In response, Defendants revised Ohio's execution protocol and practices. This resulted in the current iteration of the state's execution protocol, 01–COM–11, which became effective on September 18, 2011. Ohio then proceeded to pursue the resumption of executions.

The next inmate seeking a stay via injunctive relief to come before this Court was Reginald Brooks. Brooks' stay motion came on for a hearing from October 31, 2011 through November 2, 2011. The Court took the motion under advisement and, after examining the new protocol and the proffered evidence of Defendants' practices in implementing that protocol, issued a November 4, 2011 Opinion and Order that explained that “[t]he dispositive questions ... have been whether [Brooks] is correct that Defendants routinely deviate from mandated or core provisions set forth in the written protocol and whether [Brooks] has sufficiently proved that the protocol fails to address sufficiently varied constitutional concerns. The answer to both questions is no.” Cooey (Brooks) v. Kasich, Nos. 2:04–cv–1156, 2:09–cv–242, 2:09–cv–823, 2:10–cv–27, 2011 WL 5326141, at *12 (S.D.Ohio Nov. 4, 2011).

Notably, the crux of the rationale behind the Brooks decision is that he failed to present evidence that he was likely to prove that Defendants are not doing what they say they are doing in conducting executions under the current protocol. Of significance is that, unlike in the Smith proceedings, Defendants were now saying that they got the message that their actions must match their words. Trust us, Defendants said, we will not deviate from the core components of the protocol. This Court accepted that contention. Trust us, Defendants continued, we will let only the Director decide whether to allow any potentially permissible deviation from the non-core components of the protocol. This Court also accepted that statement. Unfortunately, Defendants once again fooled the Court.

On January 11, 2012, this Court issued an Opinion and Order granting Plaintiff Charles Lorraine's motion for a temporary restraining order staying his execution scheduled for January 18, 2012. In re Ohio Execution Protocol Litigation (Lorraine), 840 F.Supp.2d 1044 (S.D.Ohio 2012). The Court identified three provisions of Ohio's execution policy from which the state had deviated during the November 15, 2011 execution of Brooks and emphasized that those deviations were constitutionally impermissible because they “were not approved in the only manner in which they could have been approved.” Id. at 1053. This Court explained that “the Director and only the Director can approve non-core protocol deviations,” which constitutes the fifth core component of the protocol. Id. at 1053. The Court proceeded to criticize the state because it did not appear from evidence presented during the Lorraine injunctive relief hearing that any of the three Brooks deviations had been presented to Director Mohr or that the state at any point thereafter had recognized or corrected course. Such deviation from the fifth core component of the protocol problematically suggested that the remaining four core components were open to similar disregard. Id. (“It is thus not the individual non-core deviations themselves or in the aggregate that lead to this Court's rejection of substantial compliance. Rather, what is significant is the overarching core concern implicated that makes the non-core deviations errors as opposed to approved departures.”). Although the Court issued what can be fairly characterized as a stinging rebuke of Ohio's continued failure to follow its own protocol, the Court made clear once again that it had no interest in micro-managing Ohio's executions. Id. at 1058–59.

The latest plaintiff to seek a stay is Mark Wiles, an inmate on Ohio's death row who is set to be executed on April 18, 2012. On February 15, 2012, Wiles filed a motion for a temporary restraining order and preliminary injunction to stay his execution. (ECF No. 84.) Pursuant to S.D. Ohio Civ. R. 65.1(a), the Court held an informal preliminary conference with the parties on February 16, 2012, at which time the Court set a briefing schedule and a hearing date. (ECF No. 87.)

The Court held the hearing on Wiles' motion for injunctive relief from March 20, 2012, through March 28, 2012. The following witnesses testified: Team Member # 23, Team Member # 17, Ohio Department of Rehabilitation and Correction (“ODRC”) Planning Section Chief Ron Erdos, Southern Ohio Correctional Facility (“SOCF”) Health Care Administrator Roseanna Clagg, Chillicothe Correctional Institution (“CCI”) Health Care Administrator Beth Ann Higginbotham, CCI attending physician...