Tomorrow in a Cincinnati courtroom, the future of Ohio’s ability to execute prisoners may come down to statements made by Ohio state officials in years past, specifically, their announcement that they would never again use a drug to paralyze prisoners and a drug that stops their hearts called potassium chloride.
As a new commentary from The Constitution Project argues, the issue at hand is called “judicial estoppel” or the premise that parties to a lawsuit may not make inconsistent representations of their position to various courts. As the commentary notes, “it speaks to the core value of integrity in the judicial system, preventing misuse of the courts and promoting equity among litigants.”
Back in 2009, the state of Ohio was facing serious legal challenges over its three-drug lethal injection drug protocol, which used a barbiturate to provide pain relief, then a paralytic and finally a heart-stopping drug. With a hearing on the case scheduled, an execution went horribly wrong. The state tried for two hours to execute prisoner Rommel Broom but failed and had to abandon the attempt. Mr. Broom is the only prisoner in U.S. history to survive a lethal injection execution.
In this climate, facing a hearing on its lethal injection protocol, the state announced it would no longer, ever again, use a paralytic or the drug that stops the heart. There was no need for the litigation to continue, the state argued. The issues were moot because there was “no possibility” (in the state’s words) that they would ever again use the challenged protocol.
A federal judge said not so fast and so did a panel from the U.S. Court of Appeals for the Sixth Circuit, both of whom ruled that the state is judicially estopped from using those two drugs. The state appealed these decisions and won the right for the legal case against the lethal injection protocol.
On Wednesday, June 14, 2017, the full court of the U.S. Court of Appeals for the Sixth Circuit will again consider the case. Hopefully the Sixth Circuit will agree that the State can't use the same drugs they promised to never use.