On July 8 U.S. District Court Judge Gregory Frost stayed the upcoming July 19 execution of Ohio inmate Kenneth Smith because of the state's inconsistent application of its lethal injection process. Judge Frost called the state's practice "haphazard," and said, "Ohio pays lip service to standards it then often ignores without valid reasons, sometimes with no physical ramifications and sometimes with what have been described as messy if not botched executions." Smith's attorneys argued that Ohio does not follow its own execution procedures, straying from the required number of execution team members and failing to document the mixing of drugs. According to the warden of the Southern Ohio Correctional Facility, executions in January and May involved only one medical team member, rather than the required two. Frost did not rule on the constitutionality of Ohio's death penalty statute, but held that Smith would likely prevail on a claim of unequal protection under the Fourteenth Amendment. He concluded, "The perplexing if not often shocking departures from the core components of the execution process that are set forth in the written protocol not only offend the Constitution based on irrationality but also disturb fundamental rights that the law bestows on every individual under the Constitution, regardless of the depraved nature of his or her crimes."
The ruling couild affect other scheduled executions in Ohio as well. Ohio recently changed its execution drug from sodium thiopental to pentobarbital. Other states have made a similar change, but Ohio is the only state so far to use pentobarbital alone to execute an inmate. Seven other states have used it as the first drug in a three-drug protocol. Ohio began using a one-drug protocol after the botched execution of Romell Broom. Execution officials spent over two hours searching for a suitable vein for the lethal injection before then-Governor Strickland stopped the execution. Broom remains on death row, awaiting the outcome of an appeal.