What we do and the way we do it define us
The inherent dignity of every human, the fair and humane treatment of others are the core of the American ideal and are central tenets of all moral codes. Our responsibility is to apply these values to all that we do and to the way we conduct ourselves. Let’s apply these values to a matter of life and death.
Romell Broom endured a September 15, 2009 botched execution attempt that lasted 2 hours with Ohio’s search for a usable vein and more than 18 attempts to stick him. Eventually, the execution attempt was stopped.
On March 16, 2016 the Ohio Supreme Court, the opinion is found at http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2016/2016-Ohio-1028.pdf by a 4-3 vote authorized a second attempt to execute Broom because four Justices said that the Cruel and Unusual Punishments and Double Jeopardy Clauses of the United States and Ohio Constitutions do not bar an attempt to execute Mr. Broom a second time.
On December 2016, the United States Supreme Court (No. 16- 5580) refused to review Broom's case. Justices Breyer and Kagan would have granted review of the case. See remarks about Broom by Justice Breyer, dissenting from denial of certiorari in Sireci v. Florida, found at: https://www.supremecourt.gov/opinions/16pdf/16-5247_q713.pdf
Mr. Broom remains on Ohio Death Row due for a second execution attempt June 2020.
Most fair-minded people believe that if a person survives the government’s botched execution attempt, the person should be spared future execution attempts by the state. Not set free, but his life should now be exempt from another execution attempt – based upon the fundamental guarantee in the United States Constitution that a person may not be “twice put in jeopardy of life or limb….”
The Broom decision is confounding. It is not a correct application of our constitutional guarantee to the facts. The court claims the execution had not really started because the drugs had not started to flow, “because the attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached.” Really? Apparently, if the drugs had started to flow, the court would have come to a different conclusion. One need only ask what the purpose of the 18 needle insertions were if not to execute him. The execution had commenced and was under way.
And that is the court’s fiction – that the execution was not well under way. Mr. Broom had been transported to the execution house. He was fed his last meal, offered his last rites. The state then stuck him with needles no less than 18 times so the state could end his life. The execution was happening. The drugs are not some magic moment. You cannot use these drugs without needles. This would be the equivalent of saying the execution by firing squad had not really commenced after the person was blindfolded, stood against a wall, and the guns aimed and the triggers pulled . . . but they misfired. The triggers were pulled but the bullets did not travel down the barrel so no execution attempt actually took place? That is nonsensical.
The court created this fiction of defining when the execution started to circumvent a fundamental constitutional guaranteed all of us – the fundamental right not to be placed in jeopardy twice. We define our fundamental rights in criminal courtrooms. The state is so intent on killing and using its machinery of death that it is willing to redefine our rights and take those rights away from all of us? If Mr. Broom did what is alleged, it is a gruesome crime. But the gruesomeness of the crime should never be an excuse to take away fundamental rights from Mr. Broom and, in effect, all of us.
The court made bad law because what Mr. Broom did was really bad. Two wrongs do not make a right – the court only compounded Mr. Broom’s crime with its own failure to protect all of us and the fundamental rights guaranteed to all of us – even Mr. Broom. The state tried to execute Mr. Broom – the execution had clearly been commenced when the very first needle was attempted to be placed. By the 18th needle, the execution was botched. The government failed. It should never be allowed to try again.
There is a stark context for these botchings. Ohio has had other botched attempts, some 3 since 2006. The Death Penalty Information Center has information about botched executions nationally. The data is stunning in what it reveals. “It is estimated that 3|PERCENT| of U.S. executions in the period from 1890 to 2010 were botched. In the 2014 book, Gruesome Spectacles: Botched Executions and America's Death Penalty, Austin Sarat, a professor of jurisprudence and political science at Amherst College, describes the history of flawed executions in the U.S. during that period. Sarat reports that over those 120 years, 8,776 people were executed and 276 of those executions (3.15|PERCENT|) went wrong in some way. Lethal injection had the highest rate of botched executions.” https://deathpenaltyinfo.org/some-examples-post-furman-botched-executions
An October 3, 2009 NY Times Editorial, found at https://www.nytimes.com/2009/10/03/opinion/03sat2.html, entitled, Botched Executions, said it well, “Ohio’s attempt to execute Romell Broom last month by lethal injection was the death penalty at its most barbaric. … But every state should use this shameful moment to question whether they ought to be putting people to death at all.”
Each of us in all that we do and the way we do things has a duty to advance humanity, the humane treatment of others. We reveal who we really are in the way we treat the least among us, those who have caused one or more of us harm, persons on death row. Some believe we can fix the administration of the death penalty and figure out how to execute people without botching the way we kill. But it is obvious we cannot. Let us take the higher road, the moral way.
Ed Monahan was a KY public defender for 34 years and the state’s chief defender for 9 years. He is now doing public defense training and consulting nationally and is the co-author of Tell the Client’s Story: Mitigation in Criminal and Death Penalty Cases (2017) available at: https://shop.americanbar.org/ebus/store.aspx?term|EQUALS|tell|PLUS|client|PERCENT|27s|PLUS|story