Ohio in the spotlight due to lethal injection

Ohio’s full slate of executions, one scheduled each month through February 2010, is in serious jeopardy. On Sept. 16, Romell Broom was prepared for execution by lethal injection at Lucasville Prison. After two hours and 23 minutes of struggling to find a suitable vein for injection of the lethal three-drug cocktail, Gov. Ted Strickland ordered a reprieve for one week. Broom’s reprieve was extended until at least Nov. 30 by U.S. District Judge Gregory L. Frost.

Ohio reinstated the death penalty in 1999. Since that time 32 killers have been executed. Those executions have not been without controversy. In 2006, it took nearly 90 minutes to carry-out the execution of Joseph Lewis Clark. Clark screamed, “It don’t work” as the execution team probed to find a vein for administering his lethal injection.

In 2007, Christopher Newton’s execution took more than two hours. According to CBS News, the prison medical staff stuck him at least 10 times in a prolonged effort to put shunts in place for his execution.

Several weeks ago, Broom was prepared for execution in front of the victim’s family and several witnesses including a reporter from the Cincinnati Enquirer. According to the Enquirer, for more than two hours medical and prison personnel attempted to find a suitable vein in Broom’s arms and leg. During the procedure Broom was observed assisting prison staff, grimacing as his leg was repeatedly poked with a needle, and covering his face while crying.

Although the problems with Clark and Newton’s execution brought about changes in the procedure, the problems seemed to intensify in Broom’s case.

Broom’s attorneys immediately filed suit in state and federal court alleging that a second try at executing Broom would be cruel and unusual punishment. Judge Frost issued a temporary restraining order for 10 days preventing a second effort at Broom’s execution. Judge Frost subsequently scheduled a hearing on Broom’s request for a preliminary injunction. Broom was returned to a Youngstown prison to await the outcome.

To anyone following the tortured process of carrying out the death penalty, Broom’s arguments may sound familiar. In 2008, partly as a result of botched executions in Ohio and Florida, the U.S. Supreme Court reviewed whether lethal injection was cruel and unusual punishment pursuant to the Eighth Amendment to the U.S. Constitution.

In Baze v. Rees, the Supreme Court concluded that lethal injection, utilized by every state with the death penalty, does not violate the Eighth Amendment prohibition against cruel and unusual punishment. Chief Justice John Roberts, Jr. wrote in Baze, that the petitioner failed to prove that lethal injection presented an “objectively intolerable risk of harm.”

There’s precedent

Broom’s claim is different, but not without precedent. In 1946, Willie Francis, a 17 year-old convicted of murder in Louisiana, was slated for execution. The electric chair malfunctioned and not only was Francis not executed, he wasn’t even injured by the electric current. According to Gilbert King, writing in the Washington Post, the U.S. Supreme Court by a 5-4 decision held that a second attempt at execution, after “an innocent misadventure” during the first attempt would not give rise to a claim under the Eighth Amendment.

It appears that Broom’s attorneys will attempt to show a pattern in Ohio with regard to the executions of Clark and Newton as well as the failed attempt to execute Broom. They point to Chief Justice Robert’s opinion in Baze wherein he referred to a “hypothetical” scenario, previously cited by the court, distinguishing a single attempt from multiple failed attempts to carry out an execution. Chief Justice Roberts wrote, “In terms of our present Eighth Amendment analysis, such a situation-unlike an innocent misadventure-would demonstrate an ‘objectively intolerable risk of harm’ that officials may not ignore.”

Will the federal courts give Ohio a second shot at executing a convicted killer?

It may well depend on whether Chief Justice Roberts was referring, in Baze, to a pattern of botched executions for a single offender or a pattern of botched executions by a state? Regardless of the outcome, Ohio is, once again, at the center of a critical debate about the machinery of state sponsored death.

XMatthew T. Mangino is the former district attorney of Lawrence County and a featured columnist for the Pennsylvania Law Weekly. He can be reached at matthewmangino@aol.com)