[Cite as Scott v. Houk, 127 Ohio St.3d 317, 2010-Ohio-5805.] 

SCOTT v. HOUK, WARDEN. 

[Cite as Scott v. Houk, 127 Ohio St.3d 317, 2010-Ohio-5805.] 

Death penalty — Method of execution — Lethal-injection protocol — Ohio 

provides no postconviction-relief or other state-law mode of action to 

litigate issue of whether lethal-injection protocol is constitutional under 

Baze v. Rees — Lack of such a forum is not unconstitutional — Certified 

question of state law answered in the negative. 

(No. 2009-1369 — Submitted September 14, 2010 — Decided 

December 2, 2010.) 

ON ORDER from the United States District Court, Northern District of Ohio, 

Eastern Division, Certifying a Question of State Law, No. 4:07-CV-0753. 

__________________ 

{¶ 1} On July 29, 2009, Judge John Adams of the United States District 

Court, Northern District of Ohio, Eastern Division, certified the following 

question of state law to this court: “Is there a post-conviction or other forum to 

litigate the issue of whether Ohio’s lethal injection protocol is constitutional under 

Baze v. Rees, 553 U.S. 35, 128 S.Ct. 1520,170 L.Ed.2d 420 (2008), or under Ohio 

law?” The district court recertified the question to us on September 3, 2009, due 

to an inadvertent failure to provide notice of the original order to the parties. We 

accepted the question for review. 123 Ohio St.3d 1420, 2009-Ohio-5340, 914 

N.E.2d 1062. On September 14, 2010, we heard oral argument from the 

petitioner. The respondent forfeited his argument by not filing a merit brief. 

{¶ 2} There are several established methods for an Ohio death-penalty 

defendant to receive state review of his or her case. These methods, created by 

the legislature, are clear in their application to death-penalty defendants. See 

Section 2(B)(2)(c), Article IV, Ohio Constitution (direct appeal of death-penalty 
SUPREME COURT OF OHIO

2 

case to this court); R.C. 2953.21 (postconviction-relief procedure for persons 

convicted of crimes, including those sentenced to death); and R.C. 2725.01 (state 

habeas corpus petition). Additionally, we allow a death-penalty defendant to file 

an application to reopen his or her appeal in the courts of appeals and in this court 

under App.R. 26(B). See, e.g., State v. Ketterer, 113 Ohio St.3d 1463, 2007-

Ohio-1722, 864 N.E.2d 650. 

{¶ 3} We have held that these opportunities for review more than satisfy 

defendants’ “constitutional rights to due process and fair trials” while also 

protecting Ohio’s “inherent power to impose finality on its judgments.” State v. 

Steffen (1994), 70 Ohio St.3d 399, 407, 412, 639 N.E.2d 67. 

{¶ 4} The Ohio General Assembly has not yet provided an Ohio-law 

cause of action for Ohio courts to process challenges to a lethal-injection protocol, 

and given the review available on this issue through Section 1983, Title 42, 

U.S.Code, for injunctive relief against appropriate officers or federal habeas 

corpus petitions, we need not judicially craft a separate method of review under 

Ohio law. Accordingly, until the General Assembly explicitly expands state 

review of death-penalty cases by creating a methodology for reviewing Ohio’s 

lethal-injection protocol, we must answer the certified question as follows: There 

is no state postconviction relief or other state-law mode of action to litigate the 

issue of whether a specific lethal-injection protocol is constitutional under Baze v. 

Rees, 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law. 

So answered. 

 LUNDBERG STRATTON, O’DONNELL, LANZINGER, and CUPP, JJ., concur. 

 O’CONNOR, J., concurs separately. 

 BROWN, C.J., and PFEIFER, J., dissent. 

__________________ 

LUNDBERG STRATTON, J., concurring. 
January Term, 2010 

3 

{¶ 5} I concur in the majority’s decision to answer the certified question 

by concluding that currently there is no state postconviction or other avenue to 

litigate the issue of whether Ohio’s lethal injection protocol is constitutional under 

Baze v. Rees (2008), 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under 

Ohio law. 

{¶ 6} The dissent of Chief Justice Brown contends that this court has 

abdicated its responsibility to the federal courts to hear and settle this matter, 

thereby shirking its duties to enforce and interpret Ohio law. The dissent begins 

from the faulty starting point that the central issue in this case is whether we will 

ensure that the delivery of death does not needlessly inflict severe pain. However, 

the true issue in this case is whether this court is required, via judicial fiat, to set 

up yet another layer of appeals when the legislature has not. For the reasons that 

follow, I concur with the majority’s decision today that Ohio has no such 

postconviction or other forum to litigate the issue of whether Ohio’s lethal 

injection protocol is constitutional under Baze or under Ohio law, that the federal 

courts are well equipped to handle such challenges, and that this court need not 

create an appellate procedure where one does not exist. 

{¶ 7} The dissent seems to begin with the assumption that all methods of 

executions are suspect. As noted in Baze v. Rees, “[r]easonable people of good 

faith disagree on the morality and efficacy of capital punishment, and for many 

who oppose it, no method of execution would ever be acceptable.” Baze, 553 

U.S. at 61, 128 S.Ct. 1520, 170 L.Ed.2d 420. This philosophical debate, however, 

is misplaced in this case. Our duty is to uphold the law, not to opine on whether 

there could be a more humane manner of administering the penalty of death in 

Ohio. 

{¶ 8} Capital punishment is constitutional. Gregg v. Georgia (1976), 

428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859. Therefore, “[i]t necessarily follows 

that there must be a means of carrying it out. Some risk of pain is inherent in any 
SUPREME COURT OF OHIO

4 

method of execution — no matter how humane — if only from the prospect of 

error in following the required procedure. It is clear, then, that the Constitution 

does not demand the avoidance of all risk of pain in carrying out executions.” 

Baze, 553 U.S. at 47. 

Eighth Amendment 

{¶ 9} Our decision today is guided by the Eighth Amendment to the 

Constitution, which provides that “[e]xcessive bail shall not be required, nor 

excessive fines imposed, nor cruel and unusual punishments inflicted.” Further 

guidance is found in R.C. 2949.22(A), Ohio’s lethal injection statute, which 

provides that “a death sentence shall be executed by causing the application to the 

person, upon whom the sentence was imposed, of a lethal injection of a drug or 

combination of drugs of sufficient dosage to quickly and painlessly cause death.” 

{¶ 10} Throughout the history of this country, the United States Supreme 

Court has time and again upheld various methods of carrying out a sentence of 

death. “For much of American history, capital punishment was carried out by 

public hanging.” Elliot Garvey, A Needle in the Haystack: Finding a Solution to 

Ohio’s Lethal Injection Problems (2010), 38 Cap.U.L.Rev. 609, 622. In 1878, the 

court upheld the use of a firing squad in carrying out executions in Wilkerson v. 

Utah (1878), 99 U.S. 130, 134-135, 25 L.Ed. 345. In 1890, the court upheld the 

use of the newly created electric chair in In re Kemmler (1890), 136 U.S. 436, 10 

S.Ct. 930, 34 L.Ed. 519. Today, at least 36 states, along with the federal 

government, have now adopted lethal injection as the exclusive or primary means 

of implementing the death penalty. Baze, 553 U.S. at 42-43. 

{¶ 11} The dissent seems to advocate a 100 percent guarantee of a 

painless death. But the Baze court, in upholding Kentucky’s lethal injection 

protocol, held that “[s]imply because an execution method may result in pain, 

either by accident or as an inescapable consequence of death, does not establish 

the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and 
January Term, 2010 

5 

unusual.” Id. at 50. Baze held that “[p]ermitting an Eighth Amendment violation 

to be established on [a showing that better alternatives exist] would threaten to 

transform courts into boards of inquiry charged with determining ‘best practices’ 

for executions, with each ruling supplanted by another round of litigation touting 

a new and improved methodology. Such an approach finds no support in our 

cases, would embroil the courts in ongoing scientific controversies beyond their 

expertise, and would substantially intrude on the role of state legislatures in 

implementing their execution procedures – a role that by all accounts the States 

have fulfilled with an earnest desire to provide for a progressively more humane 

manner of death.” Id. at 51. 

R.C. 2949.22 

{¶ 12} The dissent argues that although the Eighth Amendment may not 

bar Ohio’s new execution protocol, R.C. 2949.22(A) provides greater protection 

against pain and suffering than does the Eighth Amendment prohibition against 

cruel and unusual punishment. As noted in our order, there are already several 

established methods for an Ohio capital defendant to receive state review of his or 

her case. These methods, created by the Constitution or the legislature, are clear 

in their application to capital defendants. Section 2(B)(2)(c), Article IV of the 

Ohio Constitution authorizes a direct appeal to this court of all death penalty 

cases. R.C. 2953.21 creates postconviction relief procedures for persons 

convicted of crimes, including those who have been sentenced to death. R.C. 

2725.01 prescribes procedures for state habeas corpus petitions that apply to 

capital defendants. Finally, capital defendants may file an application for 

reopening their appeals in the court of appeals and in this court under App.R. 

26(B). Apart from state review, federal review includes federal habeas corpus 

under Section 2254, Title 28, U.S. Code, as well as an action under Section 1983, 

Title 42, U.S. Code, for injunctive relief. 
SUPREME COURT OF OHIO

6 

{¶ 13} This court is correct to refrain from creating another appellate 

process when the General Assembly has not so provided. 

Declaratory Judgment and Mandamus 

{¶ 14} The dissent highlights what it believes to be two avenues by which 

a death-row petitioner may challenge the method of execution in Ohio courts: 

declaratory judgment actions and mandamus. In my view, neither of these 

methods is necessary, as the federal courts have done a thorough job thus far of 

adjudicating this issue. Further, a writ of mandamus to ensure that the warden 

fulfills his duty to carry out the death penalty quickly and painlessly under R.C. 

2949.22 would simply order the warden to do that which he or she is already 

required to do by law and that which he or she is already doing. 

Conclusion 

{¶ 15} The Ohio General Assembly did not choose to create an Ohio 

cause of action specifically to litigate the issue of whether Ohio’s lethal injection 

protocol is constitutional under Baze or under Ohio law. I support this court’s 

decision not to create a cause of action that does not exist, but rather to leave that 

policy decision up to the General Assembly. 

{¶ 16} With the existing system of direct appeals, postconviction relief, 

state habeas corpus, applications for reopening, federal habeas corpus, and 

Section 1983 actions, along with the various levels of appeals attendant to each 

action, there are more than adequate protections for those given the ultimate 

sentence. At some point, the victims’ families and the state deserve finality in 

judgment. For those reasons, I concur in the majority’s decision to answer the 

certified question in the negative. 

 LANZINGER, J., concurs in the foregoing opinion. 

__________________ 

O’CONNOR, J., concurring. 
January Term, 2010 

7 

{¶ 17} I concur in the majority’s answer to the certified question that there 

is no state postconviction relief or other state-law mode of action to litigate the 

issue of whether a specific lethal-injection protocol is constitutional under Baze v. 

Rees (2008), 553 U.S. 35, 128 S.Ct. 1520, 170 L.Ed.2d 420, or under Ohio law. I 

write separately, however, to address the flawed argument in the dissent of Chief 

Justice Brown, that a declaratory-judgment action is the proper avenue for 

litigating this issue. 

{¶ 18} The dissent declares that Michael Scott has the right to a quick and 

painless death under R.C. 2949.22(A) and that Ohio courts are obligated to 

enforce that right by determining whether the lethal-injection protocol satisfies the 

statutory criteria. The dissent sanctions a declaratory-judgment action as the 

appropriate mechanism through which a petitioner can protect his right. I 

disagree. 

{¶ 19} Ohio’s Declaratory Judgment Act authorizes courts of record to 

“declare rights, status, and other legal relations whether or not further relief is or 

could be claimed.” R.C. 2721.02(A). And as this court has held, a declaratoryjudgment action provides a “means by which parties can eliminate uncertainty 

regarding their legal rights and obligations.” Mid-Am. Fire & Cas. Co. v. 

Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 N.E.2d 142, ¶ 8. 

{¶ 20} The flaw in the dissent’s position, however, is that R.C. 

2949.22(A) does not create a cause of action to enforce any supposed right to a 

quick and painless death. Cooey v. Strickland (C.A.6, 2009), 589 F.3d 210, 234. 

Rather, the statute directs that the death sentence be carried out by lethal injection 

of a drug, or combination of drugs, of sufficient dosage to quickly and painlessly 

cause death to the person upon whom the death penalty was imposed. R.C. 

2949.22(A). The statute, therefore, imposes a duty upon the individual 

administering the lethal-injection protocol, but it does not plainly create any right

to a quick and painless death as the dissent mistakenly presumes. In the absence 
SUPREME COURT OF OHIO

8 

of demonstrating an established right, a declaratory judgment does not lie under 

R.C. 2721.02(A). 

{¶ 21} The dissent’s summary suggestion that all death-row petitioners 

should be permitted to assert both constitutional and statutory challenges to the 

lethal-injection protocol by means of a declaratory-judgment action is also flawed 

by the speculative nature of such a claim. While the declaratory-judgment 

statutes should be liberally construed, the statutes are not without limitation: 

{¶ 22} “Most significantly, in keeping with the long-standing tradition 

that a court does not render advisory opinions, they allow the filing of a 

declaratory judgment only to decide ‘an actual controversy, the resolution of 

which will confer certain rights or status upon the litigants.’ Corron v. Corron

(1988), 40 Ohio St.3d 75, 79, 531 N.E.2d 708. Not every conceivable 

controversy is an actual one. As the First District aptly noted, in order for a 

justiciable question to exist, ‘ “ ‘[t]he danger or dilemma of the plaintiff must be 

present, not contingent on the happening of hypothetical future events * * * and 

the threat to his position must be actual and genuine and not merely possible or 

remote.’ ” ’ League for Preservation of Civil Rights v. Cincinnati (1940), 64 

Ohio App. 195, 197, 17 O.O. 424, 28 N.E.2d 660, quoting Borchard, Declaratory 

Judgments (1934) 40.” Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 

2007-Ohio-1248, 863 N.E.2d 142, ¶ 9. 

{¶ 23} A death-row petitioner’s challenge to the lethal-injection protocol 

is based on the possibility that the application of the protocol could violate his 

rights under the Constitution and/or Ohio law. Thus, the claim would be 

contingent on the happening of a hypothetical future event, which is an 

impermissible basis to support a declaratory-judgment action. Ex parte Alba 

(Tex.Crim.App.2008), 256 S.W.3d 682, a case upon which the dissent relies, 

lends further credence to my view. Therein, the court rejected a death-row 

convict’s application for habeas relief challenging the lethal-injection protocol 
January Term, 2010 

9 

and addressed the pitfalls of using a declaratory-judgment action to challenge the 

protocol: 

{¶ 24} “[E]ven if the mixture currently used for lethal injection is 

determined to violate the Eighth Amendment, Applicant would still not be entitled 

to release or retrial — he would still be subject to the same sentence, which would 

be carried out using a different mixture as determined by the Texas Department of 

Criminal Justice. Additionally, the three-drug mixture Applicant complains about 

may not even be used when the date of his execution is set. Therefore, any 

consideration of the merits would result in a declaratory judgment and would not 

result in relief for Applicant. See Ex Parte Puckett, 161 Tex.Crim. 51, 274 S.W.2d 

696, 697 (1954) (stating, ‘This court is not authorized to enter a declaratory 

judgment.’).” Id. at 686. 

{¶ 25} In addition to the remoteness of Scott’s challenge to the possibility 

that the injection protocol may cause him severe pain, the current protocol may 

not even be used when his execution date is set. In fact, media outlets repeatedly 

have reported on an alleged shortage of sodium thiopental, the drug currently used 

by Ohio in executions. See, e.g., Kathy Lohr, States Delay Executions Owing to 

Drug Shortage (Sept. 16, 2010), http://www.npr.org/templates/story/story.php? 

storyId=129912444 (last accessed Nov. 10, 2010). Furthermore, as noted in Ex 

parte Alba, a declaratory judgment potentially would not offer Scott any relief 

from his death sentence. 

{¶ 26} Finally, the “possibility” that the lethal-injection protocol would 

cause Scott or any death-row convict severe pain is further undermined by the 

recent holding in Cooey, 589 F.3d 210. In Cooey, the Sixth Circuit Court of 

Appeals thoroughly reviewed evidence presented regarding Ohio’s current onedrug protocol and determined that the current protocol is similar to the three-drug 

protocol held constitutional by the United States Supreme Court in Baze. 589 

F.3d at 221. The court therefore concluded that the risk of severe pain was no 
SUPREME COURT OF OHIO

10 

greater — and likely less — than that inherent in any constitutional lethal 

injection. Id. 

{¶ 27} The dissent’s endorsement of a declaratory-judgment action for 

litigating Scott’s claim is not only misguided, it is unsupported by Ohio’s 

Declaratory Judgment Act. Accordingly, I concur in the majority’s judgment. 

__________________ 

 BROWN, C.J., dissenting.

Introduction 

{¶ 28} In this case, Michael Scott, who has been sentenced to death, does 

not ask to stay the executioner’s hand, but instead prays that the tools used to 

terminate his life will be humane. At the heart of his plea is a question that probes 

our common conscience: whether we will ensure that the delivery of death does 

not needlessly inflict severe pain upon those we have condemned. Cases such as 

this are the measuring stick of our civilization, in which we stake the boundaries 

of our government’s obligation to protect the weakest, the least popular, and the 

worst of its members. 

{¶ 29} The federal court that is considering Scott’s case has asked us a 

question of Ohio law: whether there is a court in Ohio in which Scott may seek to 

enforce his rights regarding the amount of risk, pain, and suffering that he will 

endure during his execution. 

{¶ 30} The majority today summarily answers “no.” 

{¶ 31} I dissent. 

{¶ 32} It is unthinkable that there could be no judicial forum in Ohio 

within which to explore the legal ambit of humane execution. Ohio has sentenced 

Scott to death, and Ohio has provided the means and guidelines under which he 

will die. Ohio must also take the responsibility of ensuring that the method of 

death does not violate Scott’s remaining rights. 
January Term, 2010 

11 

{¶ 33} The majority abdicates this court’s responsibility to federal courts 

to hear and settle this matter. In doing so, we have shirked our duties to enforce 

and interpret an Ohio statute, Ohio’s Constitution, and the United States 

Constitution. Worse, we have rendered unenforceable the General Assembly’s 

statutory mandate that death shall be administered “quickly and painlessly,” and 

we have foreclosed from consideration whether Ohio’s Constitution provides 

greater protection from pain and suffering than the federal Constitution. 

Analysis 

{¶ 34} Scott has the right to a quick and painless death.1

 R.C. 

2949.22(A)2

 provides that the drug protocol “shall” be administered in such a 

manner as to “quickly and painlessly cause death.” 

 

1. {¶ a} In her concurring opinion, Justice O’Connor writes that while R.C. 2949.22(A) “imposes 

a duty upon the individual administering the lethal-injection protocol * * * it does not plainly 

create any right to a quick and painless death.” (Emphasis sic.) ¶ 20 (O’Connor, J., concurring). 

I disagree. “A duty is the invariable correlative of that legal relation which is most properly 

called a right or claim.” Hohfeld, Some Fundamental Legal Conceptions as Applied in Judicial 

Reasoning (1913), 23 Yale L.J. 16, 33. Black's Law Dictionary defines duty as “[a] legal 

obligation that is owed or due to another and that needs to be satisfied; an obligation for which 

somebody else has a corresponding right.” (Emphasis added.) Black's Law Dictionary (9th 

Ed.2009) 580. See also Marion Cty. Bar Assn. Commt. v. Marion Cty. (1954), 162 Ohio St. 345, 

354, 55 O.O. 205, 123 N.E.2d 521, quoting Province of Tarlac v. Gale, 26 Philippine 338, 351 (“ 

‘Wherever there is a duty there is a corresponding right; and whenever a duty is laid upon an 

official there is another official or person who has the right to enforce the performance of the 

duty’”). 

 {¶ b} I agree that there are legitimate concerns as to the appropriate time that a challenge to the 

lethal-injection protocol might be ripe for adjudication. I do not find that issue relevant to the 

question asked of us by the federal court. The federal court did not ask us when a challenge based 

on R.C. 2949.22 to Ohio’s lethal-injection protocol is ripe for adjudication in an Ohio court, but 

rather whether such a challenge may be made in an Ohio court. In my view, the issue before us 

concerns the manner, forum, and procedures in which Ohio’s lethal-injection protocol may be 

challenged in an Ohio court as being inconsistent with the mandate enacted by the General 

Assembly. I cannot assent to the majority’s determination that no forum or procedures exist in 

which an Ohio court may interpret the statutory “quick and painless” language included by the 

General Assembly in R.C. 2949.22, nor can I agree that this issue of interpretation should be left 

to the federal courts. 

2. {¶ a} R.C. 2949.22 provides: 

 {¶ b} “(A) Except as provided in division (C) of this section, a death sentence shall be executed 

by causing the application to the person, upon whom the sentence was imposed, of a lethal 
SUPREME COURT OF OHIO

12 

{¶ 35} This statutory right provides greater protection against pain and 

suffering than the Eighth Amendment against cruel and unusual punishment. The 

United States Supreme Court has explained that “[s]imply because an execution 

method may result in pain, either by accident or as an inescapable consequence of 

death, does not establish the sort of ‘objectively intolerable risk of harm’ that 

qualifies as cruel and unusual” under the Eighth Amendment. Baze v. Rees

(2008), 553 U.S. 35, 50, 128 S.Ct. 1520, 170 L.Ed.2d 420, quoting Farmer v. 

Brennan (1994), 511 U.S. 825, 846, 114 S.Ct. 1970, 128 L.Ed.2d 811. In order 

for a petitioner to succeed on an Eighth Amendment challenge, he must show that 

an “alternative procedure [is] feasible, readily implemented, and [will] in fact 

significantly reduce a substantial risk of severe pain.” Baze at 52. Thus, the 

burden on a petitioner to establish an Eighth Amendment violation is worlds apart 

from establishing a violation of the affirmative requirement in R.C. 2949.22(A) 

that the warden shall ensure that an execution be quick and painless. 

{¶ 36} Accordingly, Ohio courts are obligated to enforce the policy 

announced in this statute and determine whether the lethal-injection protocol 

meets the criteria of R.C. 2949.22, independent of constitutional considerations. 

Through R.C. 2949.22, the General Assembly has provided that those condemned 

to death should experience a quick and painless death. Ohio courts are dutybound to ensure that that policy is realized. 

{¶ 37} Yet today’s holding closes the courthouse doors to death-row 

petitioners who wish to protect their right to a quick and painless death under R.C. 

2949.22. 

 

injection of a drug or combination of drugs of sufficient dosage to quickly and painlessly cause 

death. The application of the drug or combination of drugs shall be continued until the person is 

dead. The warden of the correctional institution in which the sentence is to be executed or another 

person selected by the director of rehabilitation and correction shall ensure that the death sentence 

is executed.” (Emphasis added.) 
January Term, 2010 

13 

{¶ 38} Federal courts will not protect that right. The Sixth Circuit has 

recently ruled that federal courts cannot enforce R.C. 2949.22, because the statute 

does not “create[] a federal right protected by the Fourteenth Amendment.” 

Cooey v. Strickland (C.A.6, 2010), 604 F.3d 939, 945. 

{¶ 39} If Ohio’s courthouses too are closed to claims under R.C. 

2949.22—as the majority says they are—the statute is rendered meaningless and 

unenforceable, and the right, though laudable, becomes hollow. 

{¶ 40} Further, Ohio courts must resolve whether those persons facing 

execution are entitled to greater protections under the Ohio Constitution than they 

are provided by the federal Constitution. In Arnold v. Cleveland (1993), 67 Ohio 

St.3d 35, 616 N.E.2d 163, we held that Ohio’s Constitution has force independent 

of the United States Constitution. We explained that our state Constitution is not 

limited to the protections offered by its federal counterpart, and Ohio could 

“accord[] greater civil liberties and protections to individuals and groups.” Id. at 

paragraph one of the syllabus. 

{¶ 41} We have never directly held that the standard for a method-ofexecution challenge under the Eighth Amendment of the United States 

Constitution announced in Baze v. Rees is the same as that required under Section 

9, Article I of the Ohio Constitution, which prohibits “cruel and unusual 

punishments.” 

{¶ 42} In a case that predates Baze v. Rees, we addressed a method-ofdeath challenge to lethal injection: “[Appellant] argues that the death penalty is 

unconstitutional under the federal and Ohio Constitutions because the methods 

used to carry out the sentence, electrocution or lethal injection, are cruel and 

unusual punishment. * * * [Appellant] fails to cite any case in which lethal 

injection has been found to be cruel or unusual punishment. This proposition of 
SUPREME COURT OF OHIO

14 

law is overruled.” State v. Carter (2000), 89 Ohio St. 3d 593, 608, 734 N.E.2d 

345.3 

{¶ 43} Carter predated the holding in Baze v. Rees regarding the method 

by which a defendant may challenge the method of death for purposes of the 

Eighth Amendment. Accordingly, we have never determined whether the 

standard under our Constitution is the same as the standard announced in Baze. In 

State v. Trimble, 122 Ohio St. 3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 279, 

we cited Carter in summarily overruling a challenge to the lethal-injection 

method. We also cited Baze, noting that Baze upheld Kentucky’s lethal-injection 

protocol, which is “similar” to Ohio’s. Id. However, we have never 

independently examined our protocol, nor have we expressly adopted the Baze

analysis as the standard for Ohio’s protections against cruel and unusual 

punishment. 

{¶ 44} Thus, nothing in our precedent forecloses a death-row convict from 

raising a new constitutional argument of independent force under the Ohio 

Constitution. Because this issue of purely state law is a novel one, federal courts 

should abstain from ruling on whether the lethal-injection protocol meets the 

protections afforded by Ohio’s Constitution. See Minnesota v. Natl. Tea Co. 

(1940), 309 U.S. 551, 557, 60 S.Ct. 676, 84 L.Ed. 920 (“It is fundamental that 

state courts be left free and unfettered by us in interpreting their state 

constitutions”); S.Ct.Prac.R. 18.1 (providing that a federal court may certify 

 

3. I note that Carter has become the seminal opinion as to method-of-execution challenges. This 

is regrettable, because the sole reasoning in Carter was that the defendant had not cited any cases 

finding lethal injection to be cruel and unusual; therefore the method was permissible. Despite the 

lack of analysis in Carter, we have cited its holding, time and time again, to summarily rebuff 

constitutional challenges to the method of lethal injection. See, e.g., State v. Adams, 103 Ohio 

St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 131; State v. Frazier, 115 Ohio St.3d 139, 2007-

Ohio-5048, 873 N.E.2d 1263, ¶ 245; State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 

N.E.2d 242, at ¶ 279; State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶ 

126. 

 
January Term, 2010 

15 

questions of state law “for which there is no controlling precedent in the decisions 

of this Supreme Court”). 

{¶ 45} Thus, by refusing to offer an Ohio forum for method-of-execution 

challenges, the majority has abandoned the core mission of Ohio courts of 

determining the scope and protections afforded by Ohio’s Constitution. Worse, 

the result is that a death-row petitioner has no forum in which to seek protection 

from cruel and unusual punishment under the Ohio Constitution. 

{¶ 46} Ohio courts should consider a convict’s rights under the Eighth 

Amendment to the United States Constitution as well. In the context of death, a 

petitioner should be permitted to challenge methods of execution that carry an “ 

‘objectively intolerable risk of harm’ ” or a “ ‘substantial risk of serious harm.’ ” 

Baze, 553 U.S. at 52, 128 S.Ct. 1520, 170 L.Ed.2d 420, quoting Farmer, 511 U.S. 

at 842, 114 S.Ct. 1970, 128 L.Ed.2d 811. It is, by now, well settled that Ohio 

courts are arbiters of questions raised under the United States Constitution and 

enjoy the inherent power to apply its provisions. Thus, when the issue is 

presented to them, Ohio courts should not shy away from the duty to hear and 

determine a condemned person’s Eighth Amendment challenge to lethal injection. 

{¶ 47} Given the litany of laws governing the execution of human beings, 

it is unsurprising that there are, in fact, avenues in Ohio in which to raise such 

claims. Indeed, in this case, the federal court was faced with so many different 

options – venues that had already been used or recommended in Ohio, that it 

asked us to straighten them all out. 

{¶ 48} As the federal court noted, challenges to the method of execution 

have been raised in different settings and at different stages and have met 

different fates. See, e.g., State v. Scott, 5th Dist. No. 2005CA00028, 2006-Ohio257, ¶ 59-60 (issue first raised in court of appeals in postconviction-relief 

proceeding; rejected as waived); State v. Jackson, 11th Dist. No. 2004-T-0089, 

2006 Ohio 2651, ¶ 149 (issue raised and rejected in trial court in postconviction; 
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appellate court held that “a postconviction proceeding is not the proper legal 

context in which to litigate this issue; instead, this type of issue should be raised 

in a declaratory judgment or habeas corpus action”); State v. Rivera, 9th Dist. 

Nos. 08CA009426 and 08CA009427, 2009-Ohio-1428 (pretrial motion for 

dismissal of death-penalty specifications on ground that method of execution is 

unconstitutional granted by trial court; appeal by state dismissed as not involving 

final, appealable order); Otte v. Strickland, Franklin C.P. No. 08-CV-013337 (16 

death-row inmates seek declaratory judgment in common pleas court; case is 

currently stayed). 

{¶ 49} In my opinion, there are at least two good methods by which a 

death-row petitioner may challenge the method of execution in Ohio courts. 

{¶ 50} First is declaratory judgment under R.C. Chapter 2721. A 

declaratory-judgment action would allow petitioners to raise all potential 

constitutional and statutory issues in one action. And it would provide a 

framework for the issuance of injunctive relief should an Ohio court determine 

that the lethal-injection procedure falls short of the requirements of law. A 

declaratory-judgment action permits evidentiary discovery and hearings, which 

would create a thorough record of facts regarding the pain and suffering involved 

in various methods of execution. And it is a vehicle that is already in use to 

adjudicate method-of-execution claims. In Ohio, there is the case of Otte v. 

Strickland, Franklin C.P. No. 08-CV-013337. Baze v. Rees was a declaratoryjudgment action originating in Kentucky. Id., 553 U.S. at 46, 128 S.Ct. 1520, 170 

L.Ed.2d 420. Many other states have approved, suggested, or used declaratoryjudgment actions as a vehicle to litigate constitutional and statutory challenges to 

methods of execution. See Brown v. Vail (2010), 169 Wash.2d 318, 237 P.3d 

263; Ark. Dept. of Corr. v. Williams (2009), 2009 Ark. 523, ___ S.W.3d ___; Ex 

parte Alba (Tex.Crim.App.2008), 256 S.W.3d 682, 686; Smith v. State (Jan. 4, 

2010), Mont.Dist. No. BDV-2008-303. 
January Term, 2010 

17 

{¶ 51} Under the Ohio Declaratory Judgment Act, “courts of record may 

declare rights, status, and other legal relations whether or not further relief is or 

could be claimed.” R.C. 2721.02(A). The Act “provides a means by which 

parties can eliminate uncertainty regarding their legal rights and obligations.” 

Mid-Am. Fire & Cas. Co. v. Heasley, 113 Ohio St.3d 133, 2007-Ohio-1248, 863 

N.E.2d 142, ¶ 8. The declaratory-judgment statutes are “remedial and shall be 

liberally construed and administered.” R.C. 2721.13. 

{¶ 52} A declaratory-judgment action would allow the creation of a 

record on which a court may base its ruling. “An action for a declaratory 

judgment pursuant to R.C. Chapter 2721 is a civil action,” Sterling Drug, Inc. v. 

Wickham (1980), 63 Ohio St.2d 16, 21, 17 O.O.3d 10, 406 N.E.2d 1363, and 

issues of fact “may be tried and determined in the same manner as issues of fact 

are tried and determined in other civil actions in the court in which the action or 

proceeding is pending.” R.C. 2721.10. See also Civ.R. 57 (“The procedure for 

obtaining a declaratory judgment * * * shall be in accordance with these rules”). 

In Baze v. Rees, the Supreme Court noted that the trial court hearing on 

Kentucky’s lethal-injection protocol involved “a 7-day bench trial during which 

the trial court received the testimony of approximately 20 witnesses, including 

numerous experts.” Id., 553 U.S. at 46, 128 S.Ct. 1520, 170 L.Ed.2d 420. 

{¶ 53} For those reasons, I believe that a declaratory-judgment action is 

the proper avenue in Ohio for litigating Scott’s claims. 

{¶ 54} Second, absent a declaratory-judgment action, a writ of mandamus 

may be available. A writ of mandamus would ensure that the warden fulfills his 

duty to carry out the death penalty quickly and painlessly under R.C. 2949.22. 

{¶ 55} In order to gain entitlement to the writ, the petitioner “must 

establish a clear legal right to the requested relief, a corresponding clear legal duty 

on the part of respondents to provide it, and the lack of an adequate remedy in the 

ordinary course of law.” State ex rel. Gaylor, Inc. v. Goodenow, 125 Ohio St.3d 
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407, 2010-Ohio-1844, 928 N.E.2d 728, ¶ 15. A petitioner should be granted a 

forum in which to argue that all of those factors are met. R.C. 2949.22(A) 

provides that the drug protocol “shall” “quickly and painlessly cause death” and 

that the warden “shall ensure that the death sentence is executed.” Thus, the 

statute seems to place an affirmative legal duty upon the warden and to confer a 

right on the inmate to a quick and painless death. If a declaratory-judgment 

action is not available, mandamus could be appropriate, because petitioners would 

have no remedy available at law. 

Conclusion 

{¶ 56} My opinion today does not address the merit, or lack thereof, of 

Scott’s substantive arguments concerning lethal injection as a means of carrying 

out his death sentence. But I would hold that a failure to provide a forum in 

which Scott’s rights may be contested results in Scott being summarily deprived 

of those rights. 

{¶ 57} For the foregoing reasons I would hold that Scott may challenge 

his method of execution in a declaratory-judgment action. Accordingly, I dissent. 

__________________ 

 PFEIFER, J., dissenting. 

{¶ 58} It is correct, in response to the direct question we have been asked 

to answer, to state that Ohio does not have an established legal process for a 

capital defendant to challenge the precise method and drug protocol that will be 

used by the state to execute that defendant. We are, however, bound by Section 9, 

Article I of the Ohio Constitution to ensure that cruel and unusual punishment is 

not inflicted. As a society, our comprehension of the meaning of those words has 

evolved. The understanding of the state officials responsible for carrying out the 

mandate of death has been, and continues to be, re-examined with respect to the 

exact drugs, procedures, and personnel needed to comply with statutory 

and constitutional mandates. 
January Term, 2010 

19 

{¶ 59} It is not our duty to lay out a roadmap for protracted challenges to 

Ohio's execution protocol by every capital defendant. Section 2, Article IV of the 

Ohio Constitution, however, grants jurisdiction to this court over the five great 

writs, Section 2(B)(1)(a) through (e), and "[i]n any cause on review as may be 

necessary to its complete determination." Section 2(B)(1)(f). I would deem 

Article IV to provide an avenue for a capital defendant to challenge an execution 

protocol. Is that a satisfactory remedy? That is the question we return to the 

federal courts. 

__________________ 

 David L. Doughten and Jeffrey J. Helmick, for petitioner. 

______________________