Allen Bohnert ’06 looked up from his desk at the Office of the Federal Public Defender for the Southern District of Ohio to see four grinning externs in his doorway on July 8.
“What’s up with all of you guys?”
Nicole (Chames) Chatham, a 2L, looked at the others and said, “He doesn’t know yet.”
U.S. District Court Judge Gregory L. Frost had just ordered a stay of execution for their client, Kenneth Smith, on the basis that it was substantially likely they could prove Ohio has an unconstitutional execution policy when considered through an equal protection claim under the Fourteenth Amendment.
Bohnert, an assistant federal public defender, and the rest of the team in the Capital Habeas Unit succeeded in showing the state routinely deviates from its written protocol governing the state’s administration of executions by lethal injection.
Testimony showed that execution team members regularly failed to, among other things, properly document the preparation of drugs and their doses, proceeded with executions despite failing to examine an inmate’s veins in a timely fashion, ignored systemic redundancies designed to reduce human error, and recruited someone outside of the team to provide oversight in one execution. Bohnert and his team prevailed on two different theories of equal protection claims, one of which received strict scrutiny while the other claim received rational basis review.
“Under rational basis scrutiny,” Frost wrote in his opinion, “Defendants’ core deviations are revealed to be irrational. They are arbitrary and capricious. They are unconstitutional.”
He later added, “A death warrant cannot trump the Constitution.”
Ohio and most states with the death penalty carefully constructed policies for execution teams to follow in the wake of the Baze v. Rees decision in 2008, explained Professor Douglas Berman, Robert J. Watkins/Procter & Gamble Professor of Law and author of the Sentencing Law and Policy Blog. In response to two Kentucky death row inmates’ claims that the lethal injection drug cocktail could lead to cruel and unusual punishment under the Eighth Amendment, Berman summarized the Supreme Court’s ruling as: “Absent evidence that the protocol you adopted is likely to produce significant pain, we’re OK with the way you’re doing things.”
In Ohio, executions by lethal injection have proceeded at a rate of about one monthly in the last few years. However, the state’s way of conducting executions came under scrutiny again in 2009, when technicians spent two hours trying to find an adequate vein with which to deliver a three-drug cocktail to Romell Broom. Berman said the state tried to correct procedures to avoid the situation from happening in the future, but the Broom case confirmed for attorneys like Bohnert their suspicions that the written protocols adopted by the state were not always followed scrupulously.
“The clever part of arguing that lethal injection is unconstitutional on the grounds of the Fourteenth Amendment (as opposed to the Eighth Amendment) is that it asserts constitutional problems if only some defendants get the benefit of these execution rules being followed, while some others don’t,” Berman said. “Bohnert and his team opened up this new frontier on this litigation. Ohio is a bellwether on many of these fronts.”
Attorney General Mike DeWine did not appeal Frost’s decision, and Gov. John Kasich postponed the August execution of another death row inmate to allow the Ohio Department of Rehabilitation and Correction time to fix problems cited by Frost.
Bohnert hopes to get to a full merits trial with Smith and other death row inmates, so they can prove that Ohio’s administration of lethal injection executions is unconstitutional.
“All of the evidence we’ve developed is common for each inmate because it’s evidence of what the state’s doing, or not doing,” Bohnert said. “My position is that Kenny’s stay shouldn’t be lifted until he’s at least had a chance to go to trial.”
When asked about the impact of Frost’s ruling in Ohio and beyond its boundaries, Bohnert shrugs his shoulders, sighs, and says,“It depends.” He does not want to take credit for the milestone. Instead, he talks about phenomenal work on Smith’s clemency presentation done by Sharon Hicks ’88, a colleague in the Capital Habeas Unit, and the contributions to the lethal injection litigation of Cleveland attorney Timothy Sweeney ’87 and Randall Porter ’77 of the Ohio Public Defender’s Office.
Bohnert also highlights the work done by externs in his office this summer. Joining Chatham was T. Conrad Bower, also a member of the Class of 2013, and law students from Duke University and Capital University. “It wasn’t like these students were fetching coffee and changing light bulbs in the office all summer,” Bohnert said. “They reviewed the evidence and debated strategy with me. They went to court. One of them was actually at counsel’s table with me during the hearing, and others quickly identified documents and other evidence, at times in the midst of the hearing.”
Bohnert is acutely aware their work is unpopular with those in favor of capital punishment, but he considers his job to be “defending the Constitution.” The former high school history teacher uses the example of John Adams, the ardent patriot, defending British soldiers in the Boston Massacre trial in explaining why everyone deserves a strong defense when it comes to their rights.
“Several amendments of the Bill of Rights were included, very specifically, to protect the rights of the individual who is accused, and somewhere along the way, in the last couple hundred years, I think that’s a notion that’s been forgotten,” Bohnert said.
“The very purpose of those amendments, historically, was to protect unpopular people. When I hear people say, ‘We should just do to this person the same thing they did to their victims,’ or that someone gives up their constitutional rights when they’ve allegedly done something wrong, that’s quintessentially unconstitutional and, in fact, the very opposite of what the founders believed. We, as a society, have to be better. That’s the whole point.”
In the classroom at Kingwood High School in Texas, Bohnert became increasingly bothered by the government’s response to the terrorist attacks of Sept. 11, 2001 and leading to the 2003 invasion of Iraq. He described it as a surreal time to teach U.S. history.
“One of the things I always told my students was that if you don’t vote, you can’t complain,” he said. “The corollary to that is: If you see something you don’t like and have the ability to do something about it, then you forfeit your right to complain about it.”
Perceptive students in his classroom picked up on Bohnert’s internal struggle and reminded him of his own words. “They kind of called me out on it,” he said. “ ‘You talk about law school and being involved in elected office, but you’re still teaching history. What’s up?’ They were right.”
Bohnert left teaching to enter a new kind of classroom at The Ohio State University Moritz College of Law. Under Berman’s tutelage, he took a liberal arts approach to law school, taking classes with professors who had stellar reputations, even if their subject matter did not strike the greatest interest in Bohnert.
“Federal taxation with Professor (Donald) Tobin turned out to be surprisingly delightful. It was one of my favorite classes in law school,” he recalled. Bohnert keeps in regular contact with Berman, who taught him criminal law and sentencing, and who encouraged him to pursue his federal judicial clerkship with Judge Dan A. Polster in Cleveland following graduation. Professor Daniel Tokaji’s instruction on the Fourteenth Amendment, Bohnert said, “played no small part in how I ended up looking at the lethal injection stuff, honestly.”
Considering his work today, would former students from Kingwood High School say Bohnert’s actions follow his own teachings?
“Kenny Smith is still alive, and we had a lot to do with that. In that respect, that’s exactly what I was talking about with my students,” he said. “If this ruling could be used to shine some more light on what’s going on in other states, I would be thrilled. But it takes a federal judge with courage and willingness to listen like Judge Frost to allow the curtain to be pulled back and to give effect to all the evidence we developed.”
Tags: Allen Bohnert, Douglas Berman, Nicole Chatham, Randall Porter, Sharon Hicks, T. Conrad Bower, Timothy Sweeney