Thursday, April 15, 2010

Chicago Criminal lawyer wonders if allergies pass muster under the Eighth Amendment?

This Chicago Criminal lawyer has wondered about the boundaries of the Eighth Amendment. There’s an Unfortunate who says the Eighth Amendment prohibits his forthcoming execution.

From the

A condemned Ohio inmate who says he's allergic to anesthesia is undertaking what appears to be a unique legal maneuver, arguing that no one knows how his body will react if state officials are allowed next week to inject him with the one lethal drug they now use.

A doctor is studying what impact, if any, the allergy could have on the execution process after lawyers for Darryl Durr uncovered evidence of Durr's allergy in his 800-page prison medical record. Durr was sentenced to die for raping and strangling a 16-year-old girl in 1988.

''One of the things the Ohio Constitution guarantees is that he has a quick and painless execution,'' said defense attorney Kathleen McGarry.

U.S. District Court Judge Gregory Frost allowed Durr's medical records to be reviewed over the objection of the state. The Ohio attorney general's office argued the judge didn't have the authority to approve Durr's request for an expert of his choosing in a lawsuit against the state.

Heath's report is expected soon, given that Durr's execution is scheduled for Tuesday. Depending on the findings, Durr could use the results to try to stop or delay the execution, a request the state would likely oppose.

Death penalty experts say they're unaware of a similar issue being raised in the past, though strong reactions to lethal injection drugs have occurred. Most states generally begin the execution process with an anesthetic like the one Ohio uses alone.

In 1989, Texas death row inmate Stephen McCoy reacted violently to the chemicals and began choking and seizing, despite being restrained. A witness fainted, knocking over another witness. A state official later said a heavier dose might have been warranted.
The next step would be the legal battle over what constitutes cruel and unusual punishment. In this specific case perhaps there could be resolution if the prosecution weren’t blocking the defendant’s request for DNA testing.

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