Merit Decision: Second Execution Attempt Not Unconstitutional. State v. Broom.

On March 16, 2016 the Supreme Court of Ohio handed down a merit decision in State v. Broom, 2016-Ohio-1028. In a 4-3 opinion written by Justice Lanzinger, the court held that a second attempt to execute Romell Broom, after the first attempt at lethal injection failed, was neither cruel and usual punishment nor a double jeopardy violation under either the U.S. or Ohio Constitutions. Justices Kennedy and O’Donnell and Chief Justice O’Connor joined the majority decision. Justice French wrote a blistering dissent, joined by Justice Pfeifer.  Justice O’Neill dissented separately.  The case was argued June 9, 2015.

Case Background

In 1985, Romell Broom was convicted and sentenced to death for the aggravated murder, rape, kidnapping, and attempted kidnapping of fourteen year old Tryna Middleton. The death sentence was affirmed on appeal in 1988.  After exhausting all state postconviction and all federal remedies, his execution was set for September 15, 2009.

Failed Execution Attempt

The majority describes the failed execution attempt in such grisly detail, that I can only agree with what Justice O’Neill wrote in his dissent-it chilled me to the core. Honestly, just reading it makes me wonder how this could not be considered cruel and unusual punishment.  One example:

{¶ 5} Team Member 9 made three attempts to insert a catheter into Broom’s left arm but was unable to access a vein. At the same time, Team Member 21 made three unsuccessful stabs into Broom’s right arm. After a short break, Member 9 made two more insertions, the second of which caused Broom to scream aloud from the pain.

Believe me, it gets much worse. At one point, “Broom covered his eyes and began to cry from the pain.”  In short, the execution team failed after approximately two hours to place an IV catheter, pricking Broom a total of eighteen times-once in each bicep, four times in the left forearm, three times in his right forearm, three times on the left wrist, one time on the back of his left hand, three times on the back of his right hand, and once on each ankle. A doctor later said that the actual number of catheter insertions was much higher than the number of punctures because the medical team would “withdraw the catheter partway and then reinsert it at a different angle.”

Finally, when the governor’s office indicated a willingness to grant a reprieve, the execution attempt was stopped.  A key fact you need to know if you want to keep reading this gruesome post is that at no point did any lethal drugs make it into Broom’s veins.

Remember, lethal injection has replaced the electric chair, the gas chamber, and the firing squad.  It’s supposed to be more humane. Try and keep that in mind when reading this opinion.

Broom’s Legal Actions to Stop Further Attempts to Execute Him

Broom filed a number of state and federal actions to stop any further attempts to execute him, none of which succeeded. The one pertinent to this appeal was a successive petition for postconviction relief filed September 15, 2010 in the Cuyahoga County Court of Common Pleas, asserting that any future attempt to execute him would be unconstitutional. On April 7, 2011, the trial court denied the petition without an evidentiary hearing, holding that a second attempt would not violate the Fifth or the Eighth Amendment.

In a split decision, the Eighth District Court of Appeals affirmed, on different grounds. The majority found that to get the relief requested, Broom needed to prove that the execution team acted with “deliberate indifference.” The court refused to remand the case to give Broom a chance to meet the newly adopted standard.

Read the oral argument preview here and an analysis of the argument here.

Key Statutes and Precedent

Fifth Amendment to the U.S. Constitution (No person shall be subject for the same offence to be twice put in jeopardy of life or limb.)

Ohio Constitution Article I, Section 10 (No person shall be twice put in jeopardy for the same offense.)

Eighth Amendment to the U.S. Constitution (Cruel and unusual punishments shall not be inflicted.)

Ohio Constitution Article I, Section 9 (Cruel and unusual punishment shall not be inflicted.)

R.C. 2949.22(B) (A death sentence shall be executed on the day designated by the judge passing sentence or otherwise designated by a court in the course of any appellate or postconviction proceedings.)

R.C. 2953.21 (Before granting a hearing on a postconviction relief petition, the court shall determine whether there are substantive grounds for relief. To warrant an evidentiary hearing in a postconviction proceeding, a petitioner must submit evidence outside the record that sufficiently establishes the petitioner is entitled to relief on one or more asserted constitutional grounds.)

R.C. 2949.22(A)(“a death sentence shall be executed by causing the application to the person upon whom the sentences was imposed, of a lethal injection of a drug or combination of drugs.”)

In re Kemmler, 136 U.S. 436 (1890) (punishments are cruel “when they involve torture or a lingering death.”)

Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (The Double Jeopardy Clause does not preclude the state from carrying out a second execution sentence after a failed execution attempt. The cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely. This was a 4-4-1 plurality opinion, in which Justice Frankfurter’s concurrence found that the Eighth and Fifth Amendments were not applicable to states, a position that has since been rejected. )

North Carolina v. Pierce, 395 U.S. 711 (1969) (The Double Jeopardy Clause protects against three distinct evils: a second prosecution for the same offense after acquittal, a second prosecution for the same offense after conviction, and multiple punishments for the same offense.)

McDougle v. Maxwell, 1 Ohio St.2d 68 (1964)( “Cases in which cruel and unusual punishments have been found are limited to those involving sanctions which under the circumstances would be considered shocking to any reasonable person.”)

State v. Calhoun, 86 Ohio St.3d 279 (1999) (A trial court has the discretion to deny a postconviction petition without discovery or an evidentiary hearing if the petition, supporting affidavits, documentary evidence, and trial record do not demonstrate sufficient operative facts to establish substantive grounds for relief. To warrant an evidentiary hearing in a postconviction proceeding, a petitioner must submit evidence outside the record that sufficiently establishes that the petitioner is entitled to relief on one or more asserted constitutional grounds.)

State v. Gondor, 2006-Ohio-6679 (The decision to grant or deny a postconviction petition should be upheld absent an abuse of discretion. A reviewing court should not overrule the trial court’s determination if it is supported by competent and credible evidence.)

Baze v. Rees, 553 U.S. 35 (2008)(“Some risk of pain is inherent in any 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 execution.” U.S. Supreme Court has never invalidated as cruel and unusual punishment a state’s chosen procedure for carrying out a sentence of death.)

Glossip v. Gross, 135 S.Ct. 2726 (2015) (A prisoner’s challenge to a method of execution under the Eighth Amendment will fail unless the prisoner establishes that the method of execution presents a substantial risk of serious harm that is objectively intolerable and prevents prison official from claiming that they were subjectively blameless.)

This Appeal

The Ohio high court agreed to decide these issues:

  • Whether a second execution attempt violated the Cruel and Unusual Punishment Clauses of U.S. and Ohio Constitutions.
  • Whether the lower courts erred in denying Broom discovery and a hearing.
  • Whether the court of appeals erred in adopting a new standard for adjudicating Broom’s “unique and rare” constitutional claims, and in refusing to remand the case to the trial court so he could meet the new standard.
  • Whether a second attempt to execute Broom violated the Double Jeopardy Clauses of the U.S. and Ohio Constitutions.


I’m going to try and avoid making this overly technical. If you do read the entire decision, best have a strong stomach.

Double Jeopardy

A person can’t be tried or punished twice for the same offense. The U.S. and Ohio Constitutions have identical provisions prohibiting this. Broom had argued that jeopardy attached with the first insertion of the needle, and that he had a reasonable expectation in the finality of his death sentence on September 15, 2009, because R.C. 2949.22(B) requires a death sentence to be carried out on the day designated by a court.

The court of appeals found (as the state had argued) that because no lethal drugs ever flowed into Broom’s veins, everything else that happened was mere preparation. Until those lethal drugs flow there is no punishment, and therefore no Double Jeopardy Clause violation with multiple preparatory attempts.  In short, the Ohio high court agreed:

“As the statute (R.C. 2949.22(A)) makes clear, the execution commences when the lethal drug enters the IV line. In this case, because the attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached.” (¶ 26)

This same reasoning, no lethal drugs ever flowed into Broom’s veins, also forms the grounds on which the majority rejects the cruel and usual punishment argument. This was the core of the prosecution’s argument.

Due Process

Broom argued that the trial court should have allowed him to conduct discovery and should have held a hearing on his petition for postconviction relief. He also argued that since the appellate court adopted a new standard –deliberate indifference—to analyze his petition, that court should have sent the case back to the trial court to give him a chance to meet that standard. No go on either of these.

Discovery and Hearing

 All of this is well-settled law already:

A postconviction proceeding is not a criminal proceeding, but a civil collateral attack on a criminal judgment. The right to file a postconviction petition is a statutory, not a constitutional right, and there is no right to discovery in postconviction proceedings. Since R.C. 2953.21 is silent about discovery, the decision to grant or deny a request for discovery is discretionary with the trial court. To warrant an evidentiary hearing in a postconviction proceeding, the petitioner must submit evidence outside the record that sufficiently establishes that the petitioner is entitled to relief on one or more asserted constitutional grounds.

What Broom Submitted

The majority noted that Broom had filed an affidavit and other documentary exhibits and deposition testimony from participants in his attempted execution in one of his federal proceedings, but never filed a discovery request while the matter was pending in the trial court and didn’t proffer what the additional discovery was or how it would help.

Bottom line: No abuse of discretion in denying Broom’s petition without additional discovery or an evidentiary hearing.

The Deliberate Indifference Standard

The court of appeals held that multiple execution attempts do not per se constitute cruel and unusual punishment, a position the high court majority agreed with. In reaching that conclusion, the appeals court divided Broom’s allegations into two parts—injuries allegedly caused by the state following its execution protocol, and those caused from failure to do so.

The appeals court rejected as untimely the first category, which it took to be a facial challenge to Ohio’s execution protocol. Then the appeals court analyzed the allegations of failure to follow the protocol with a “conditions of confinement” standard, which requires proof of the state officials’ subjective state of mind.  The Ohio Supreme Court majority rejected this deliberate indifference standard, finding the method-of-execution cases more analogous, but ultimately found this made no difference, since the trial court had properly relied on the key precedent of Baze and Resweber in its decision.  So there was no need to remand for a further hearing.

Bottom line: No due process violation.

Eighth Amendment Analysis

Ok, here is where this decision turns Kafkaesque, to me.

The Eighth Amendment forbids cruel and unusual punishment. Under the U.S. Supreme Court’s jurisprudence, this prohibition imposes two separate limitations—proportionality and a prohibition against specific torturous methods of punishment. The Ohio high court majority found that because what happened is fortunately rare, Broom’s challenge really didn’t fit neatly into either category, although to me, the latter challenge is more obvious and the court spent most of its time on this category. The proportionality arguments aren’t really apposite here. (Although they would have been to 17-year-old Willie Francis, in Resweber).

The settled federal law in this area is that punishments are cruel if they involve torture, a lingering death, or the unnecessary and wanton infliction of pain. Wondering what some examples might be? Live disemboweling, beheading, quartering, burning alive, and public dissection. But the majority notes that the U.S. Supreme Court has never struck down a specific method of execution as cruel and unusual. So, objective evidence of pain in the challenged method is supposedly key.


Here’s what is required under the U.S. Supreme Court’s most recent jurisprudence:

“A prisoner’s challenge to a method of execution under the Eighth Amendment will fail unless the prisoner establishes that the method of execution presents a substantial risk of serious harm that is objectively intolerable and prevents prison officials from claiming that they were subjectively blameless… It is not enough that a prisoner shows that there is a slightly or marginally safer alternative. Instead, the prisoner must identify an alternative that is “ ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.’ ”


Fortunately, Broom’s claim has no precedent in Ohio, (or hopefully anywhere else) so the Ohio high court had to fall back on the 1947 case of Resweber, cited by both sides below.  That’s a case where the electric chair malfunctioned during an execution attempt. Four justices in the plurality rejected an Eighth Amendment challenge because ““[t]he cruelty against which the Constitution protects a convicted man is cruelty inherent in the method of punishment, not the necessary suffering involved in any method employed to extinguish life humanely.” The dissenters noted that electrocution is statutorily and constitutionally permissible only if it is “so instantaneous and substantially painless that the punishment shall be reduced, as nearly as possible, to no more than that of death itself.” Justice Frankfurter cast the deciding vote with the plurality, but only a ground that has long since been discredited—that he did not believe the Eighth Amendment had been incorporated against the states.

Relying on Resweber, the majority in Broom’s case found there is no per se prohibition against a second execution attempt under the Cruel and Unusual Punishment clause of the Eighth Amendment. In carrying out the execution, the state’s intention is not to cause unnecessary physical pain or psychological trauma, and what Broom has already suffered does not equate with the type of torture banned by the Eighth Amendment.

If you find Resweber persuasive, best read what Justice O’Neill adds about Willie Francis, the actual defendant in that case.  He was a 17 year old black man convicted in Louisiana by an all-white, all-male jury, in a case in which his court appointed lawyers offered no defense.  Of course our standards of decency supposedly have evolved.  We can no longer execute 17 year olds.

Ohio’s Execution Protocol

The rest of the argument on cruel and unusual punishment revolves around Ohio’s execution protocol. Justice Lanziner acknowledges that the state failed to follow its protocol in 2009, and that “compliance with execution protocols is the best way to avoid the risk of severe pain, but deviation from a protocol is not an automatic constitutional violation.”

Ohio of course has been in endless litigation in federal court about its execution protocol. That’s a whole other sordid chapter in this area of law. But the majority concludes here that the state has executed 21 people since Broom without incident. (The majority makes no mention of the fact that the state presently does not have the necessary drugs to execute anyone.)

“Strict compliance with the protocol will ensure that executions are carried out in a constitutional manner… We simply are unable to conclude that Broom has established that the state in carrying out a second attempt is likely to violate its protocol and cause severe pain.”

Bottom Line: No Eighth Amendment Violation.

An Inconsequential Nod to the Ohio Constitution

Under the new judicial federalism, a state is free to find greater protections for certain rights under its own constitution than exist under the federal floor. On one occasion,  In Re CP, 2012-Ohio-1446, the court held that Article I Section 9 of the Ohio Constitution provides protection independent of the Eighth Amendment. Justice Lanzinger joined the majority decision in that case, which struck down automatic lifetime registration and notification requirements for certain juvenile sex offenders tried within the juvenile system.  But , Lanzinger notes in the Broom case, under state law, cruel and unusual punishment cases are limited to those which would be considered “shocking to any reasonable person.” In Broom’s case, the court found, as it had under its Eighth Amendment analysis, that since no drugs were introduced into his system, it would not shock the conscience to let the state try and execute Broom again.

 Justice French’s Dissent

Justice French’s dissent, on due process grounds, is one of the most blistering things I can recall her having written since she joined the court. While much of it very technical, I’ll summarize her main points.

French’s overarching point is that Broom’s petition contained enough operative facts to allow him to have an evidentiary hearing to prove his cruel-and-unusual-punishment claim, and that the court need decide nothing else in this appeal. Skipping the technical  postconviction jurisprudence stuff (which of course is crucial for the lawsuit, but not for this summary) here are her key points:

  • The evidence in the record, if proven, would establish that the state has repeatedly and regularly had problems with lethal injections.
  • Broom’s execution team was flat out incompetent.
  • The way and number of times the medical team improperly inserted the catheters in Broom’s case was likely to cause great pain.
  • It should be up to the state, not Broom, to prove what went wrong here, and to prove that the state will not deviate from its new protocol in the future.
  • The state is still having difficulty with its drug protocol.

Justice Pfeifer concurred in this opinion. No surprise there. Read this recent post.

Justice O’Neill’s Dissent

Justice O’Neill wrote a solo dissent, completely in keeping with his per se opposition to the death penalty which he has articulated many times since joining the court. You can read more about that here. As I indicated earlier in this post, O’Neill describes the majority’s description of the state’s attempt to execute Broom as chilling. He describes the term lethal injection as a “convenient euphemism” that “implies a sanitized death” even though the record in this case shows that Broom was “poked repeatedly with a needle and that pain was unquestionably inflicted, not unlike procedures that have been recognized as torture in the past.”

O’Neill categorically rejects using Resweber as precedent here, elaborating in detail on the particulars of a case in which 17 year old Willie Francis, a black male in Louisiana, was convicted by an all-white, all-male jury in which his court-appointed lawyers offered no defense at all in his case.  Francis was never informed of his right to appeal or to appointed counsel on appeal; there was no appeal of his conviction or sentence. “And this is the case the majority relies upon to suggest that due process is alive and well in Ohio,” wrote O’Neill.

“I wonder when concepts of human dignity will evolve sufficiently that the State of Ohio will lay down the death penalty entirely just like the more obvious forms of torture that have been abandoned so far,” wrote O’Neill. He would find, both “morally and constitutionally,” that subjecting Broom to a second execution attempt after one extremely painful and unsuccessful attempt is an Eighth Amendment violation.

Concluding Observations

After the argument, I correctly called this for the state (though as I noted, not in any praiseworthy way), writing, “I think the majority view is going to be that because no drugs actually made it into Broom’s body, a second attempt at executing him does not constitute cruel and unusual punishment.” I also wrote that the court was not going to buy the double jeopardy argument, which it didn’t. I also correctly called Justice O’Neill’s dissent, which was a no-brainer because he has opposed the death penalty since he joined the court.  I noted in my observations that O’Neill had cited the Broom case in his very first dissent from a scheduled execution in State v. Wogenstahl as the quintessential example of a cruel punishment. O’Neill himself referenced that same citation in this case. (see ¶ 89 of the dissent.)

What I didn’t see coming at all was Justice French’s passionate dissent. While French votes only to give Broom an evidentiary hearing on his Eighth Amendment claim, and speaks only to due process, which is characteristic of French’s typically careful and cool analytical approach to legal issues, (in contrast to Justice O’Neill’s more passionate moral outrage), she left no holds barred about the clinical incompetence of the execution team.  She gives much credence to the testimony of Dr. Mark Heath, an anesthesiologist from Columbia University, who met with Broom one week after the failed execution attempt, and who has been highly critical of Ohio’s then-exiting drug protocol, and was highly critical of just about everything that happened in this case.

Justice Pfeifer dissented, as I assumed he would, but wrote nothing separately.  He did not, as I thought he might, find greater protection here under the Ohio Constitution.  For years Pfeifer has made his opposition to the death penalty widely known. But he has taken a more nuanced approach to death penalty cases than Justice O’Neill has.  He has evaluated each case individually, rather than issuing a blanket veto of the death penalty in each case, as O’Neill has.  Notably, he did not join Justice O’Neill’s dissent in this case, choosing instead to join Justice French’s more limited dissent.

As I said earlier in this post, I could barely read this decision. Much has been written about these drug protocols in lethal injections, especially since European countries have refused to continue to export the “reliable” execution drugs to this country for this purpose, believing this to be a human rights violation.  You can read more about that in many places.

Last year, in the Glossip case, Justice Breyer signaled his wish for the U.S. Supreme Court to revisit the constitutionality of the death penalty.  Justice Ginsburg joined him.  The Broom case may just be the vehicle to do this. I don’t know the technical meaning of “unusual” in the cruel-and-unusual punishment jurisprudence, but what happened to Broom certainly was literally so, in addition to being cruel.  I hope the defense tries for certiorari. Of course, if the case did make it to the court with only eight justices, in the event of a tie, the Supreme Court of Ohio majority decision would stand.  But that’s a whole other issue.



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