OHIO’S FIRST EXECUTION UNDER NEW ONE-DRUG LETHAL INJECTION PROTOCOL

The Sixth Circuit Court of Appeals denied Kenneth Biros’s request for stay of execution. Richard Cooey,II, Kenneth Biros (Intervenor) v. Ted Strickland, et al., Case No. 09-4474. Biros, one of the litigants in the challenge to Ohio’s previous three-drug protocol, challenged the States implementation of the new one-drug protocol and the back-up intramuscular procedure. The Circuit Court, after a thorough review of the record, affirmed the district court’s order and held that Biros had not met his burden of demonstrating a strong likelihood of success on the merits on his Eighth Amendment claim under any standard set forth in Baze v. Rees, 553 U.S. 35 (2008), because he failed to show that the new protocol, facially or as applied to him, demonstrates a risk of severe pain that is substantial when compared to known and available alternatives. The Court countered that while the new protocol is not perfect, it conforms with the Constitution’s prohibition on cruel and unusual punishment, and is a decided improvement on Ohio’s previous protocol. Moreover, the Court stated that the new protocol is the precise procedure Biros’s fellow litigants in Cooey demanded Ohio implement.

Biros was executed at 11:00 a.m. today. He is the first person to be executed under the one-drug protocol.