The State of Ohio is prepared to execute a convicted killer on Tuesday using an untested method of lethal injection that no other state has ever employed.
The planned execution of Kenneth Biros, who was convicted of killing and dismembering Tammy Engstrom in 1991, will mark the first time a lethal single-drug dose of an anesthetic has ever been used on a death row inmate.
On Monday morning, a federal judge denied a request from Biros to delay his execution until attorneys could conduct a review of the new protocol. U.S. District Judge Gregory L. Frost said that Biros had not demonstrated "at this juncture" that the new protocol is unconstitutional.
But the judge added, "it does not foreclose the possibility that additional evidence will indeed prove that the problems with Ohio's policies and practice rise to a constitutional error."
Lawyers for Biros filed an appeal with the 6th U.S. Circuit Court of Appeals in Cincinnati, but that court rejected his request for a stay Monday night.
Ohio has been plagued with problems administering lethal injection.
Earlier this fall, the state abandoned its standard three drug protocol after nurses and a doctor were unable to execute inmate Romell Broom after 18 puncture attempts.
Broom became the first inmate in history to walk away from a planned lethal injection execution and he is now arguing that the state can't attempt to kill him a second time.
After an examination of Broom's botched execution, state officials decided to change protocol in November adopting the use of one drug -- a massive overdose of an anesthetic called sodium thiopental -- for its new injection standard.
Of the 36 states, and the federal government, that use lethal injection, most use the same method that Ohio has now abandoned: a three-drug combination of sodium pentathol, pancuronium bromide and potassium chloride. The latter two drugs serve to paralyze the inmate and then stop his heart.
In changing its protocol Ohio also established a "back up procedure" in the event that officials are unable to find an appropriate vein for the intravenous injection of the drugs. The back-up plan involves injecting the chemical directly into muscle instead of the bloodstream.
Terry J. Collins, director of the Ohio Department of Rehabilitation and Correction, authorized the direct injection of a sedative, midazolam, and an opiate, hydromoprhone, into muscle tissue to carry out the execution.
Some opponents of the death penalty applaud the fact that Ohio has agreed to stop using two of the drugs.
"This is a significant step forward," said Ty Alper, Associate Director, Death Penalty Clinic, U.C. Berkeley School of Law. "Paralyzing inmates before executing them – so we can't tell whether they are suffering – is a barbaric practice, and Ohio should be commended for stopping it."
But Alper still sees problems with the system. "Ohio still hasn't solved the problem of IV access, and given Ohio's difficulty in accessing inmates' veins that remains a serious concern. Our main concern is that if they can't establish IV access then they have to use the back up plan which is a complete unknown."
Alper says the state has to go through a more thorough vetting process of the new protocol even though it was developed in consultation with a doctor whom the state has on retainer to consult on lethal injection issues.