Further Update: On December 12, 2016, the U.S. Supreme Court denied Broom”s petition.
Update: Read the state’s brief in opposition here.
In State v. Broom, 2016-Ohio-1028, the Supreme Court of Ohio decided in a 4-3 opinion written by Justice Judy Lanzinger that a second attempt to carry out the death penalty 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.
Romell Broom was 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 post-conviction and all federal remedies, his execution was set for September 15, 2009. On execution day, after trying for over two hours to execute Broom, sticking him 18 times unsuccessfully, during which time Broom both screamed with pain, and began to cry, the Governor ordered the execution attempt stopped.
After the failed execution attempt, Broom filed a petition for post-conviction relief in the Cuyahoga County Court of Common Pleas, asserting that any future attempt to execute him would be unconstitutional. The trial court and the appeals court denied relief.
On discretionary appeal to the Supreme Court of Ohio, while conceding that the state had violated its own execution protocol, a majority of the justices held that there was no constitutional violation in this case because no lethal drugs ever entered Broom’s veins, the pain experienced by Broom did not equate to the type of torture banned by the Eighth Amendment, and based on the only existing relevant precedent, Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947) (involving a failure of the electric chair), there was no per se prohibition against a second execution attempt. The majority also found that Broom had not established that the state was likely to violate its own protocol and cause him severe pain in a second attempt to execute him, and therefore was not entitled to a post-conviction evidentiary hearing.
There were two separate dissents in the case. Justice O’Neill, who is per se against the death penalty, believed the first attempt to execute Broom was the equivalent of torture. (“Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time.”)
Justice French, joined by Justice Pfeifer, focused more on due process, disagreeing that Broom had failed to establish that there is substantial risk that a second execution attempt presents an “objectively intolerable risk of harm,” and would have granted Broom an evidentiary hearing on his post-conviction petition.
Read an analysis of the merit decision in this case here.
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 Amendment ban on cruel and unusual punishment was not applicable to states, a position that has long since been repudiated.)
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.)
Broom’s Cert. Petition
Broom presented three issues in his cert. petition:
- Was the first attempt to execute Broom cruel and unusual under the Eighth and Fourteenth Amendments to the United States Constitution and if so, is the appropriate remedy to bar any further execution attempt on Broom?
- Will a second attempt to execute Broom be a cruel and unusual punishment and denial of Due Process in violation of the Eighth and Fourteenth Amendments to the United States Constitution?
- Will a second attempt to execute Broom violate Double Jeopardy protections under the Fifth and Fourteenth Amendments to the United States Constitution?
Cruel and Unusual Punishment
Broom first argues that the state’s first attempt to execute him was cruel and unusual punishment. What he suffered was cruel and unusual by any modern day understanding of the Eighth Amendment. Resweber is no longer in line with the Court’s decisions on the Eighth Amendment or with modern standards of human decency. The execution attempt was not carried out in the careful and humane way that is required by Ohio law, which requires a quick and painless death. Being stabbed and jabbed with needles for over two hours without any relief should be recognized for what it is, torture. In addition to the physical pain, Broom had to endure severe psychological trauma through this process.
The circumstances that arose on the day of Broom’s execution were not unforeseeable accidents that came about despite careful and humane procedures. Ohio has a history of problems with lethal injection executions and particularly with IV access. Similar problems with venous access had arisen with virtually the same medical team and were therefore, completely foreseeable.
The Supreme Court of Ohio majority opinion noted that “[s]trict compliance with the protocol will ensure that executions are carried out in a constitutional manner,” but conceded that Ohio’s execution protocol was not followed in this case. As a result, the attempted execution was cruel and unusual. In such a case, where such damage cannot be undone, the appropriate remedy must be to bar any attempt to execute Broom again.
Broom next contends that even if the Court does not find that the first execution attempt constituted cruel and unusual punishment, any second attempt to execute Broom clearly would be. Broom cannot simply forget that the first botched execution occurred. The first attempt caused him to suffer severe physical and psychological trauma that will naturally become part and parcel of any subsequent execution attempt. Exposure to a threatened death is a recognized psychiatric trauma. Putting Broom in the same situation—in which he suffered both physical pain and psychological terror—is cruel and unusual.
Broom does not challenge the manner in which Ohio conducts its executions. But what happened the first time cannot just be ignored. Rather, it is the unique circumstances of Broom’s case, that is, the prior attempts to kill him, that make the second attempt clearly cruel and unusual. Forcing Broom to face the risk that what happened before could happen again flies in the face of evolving standards of human decency.
Finally, Broom argues that even if a second attempted execution is not found to be cruel and unusual punishment, it most certainly is a double jeopardy violation, which in this context protects against multiple violations for the same offense (obviously rarely applied to death sentences.) While the Supreme Court of Ohio rightfully acknowledged that double jeopardy protection applied to a second execution attempt, it erred by relying on Ohio’s lethal injection statute to determine how far the procedure must progress before jeopardy can attach. For the purposes of protecting an individual from being punished multiple times for the same offense, federal principles should govern. Under such principles, jeopardy would attach when Broom had the legitimate expectation that his death would be imminently inflicted during the attempted execution. Due to the particularly traumatic circumstances that Broom suffered during his first attempted execution, it is evident that Broom surpassed the point of legitimate expectation of death. As a result, any further attempt to execute Broom would constitute double jeopardy.
Observations From Professor Emerita Bettman
This petition is a very powerful document. Read the entire thing here. The state’s response is due September 16, 2016.
While I thought this case might be headed for the U.S. Supreme Court, I’m torn about its chances of getting in. On the one hand, this is (fortunately) such a unique and unusual circumstance, it might not be deemed worthy of review for just that reason. But on the other hand, because it is so unique and unusual, (as Broom points out, most challenges to execution protocols are prospective-this one is unique in being brought by someone who survived a botched protocol) may be just the case the U.S. Supreme Court is looking for to re-examine the death penalty. In Glossip, Justice Breyer has signaled his view that it is time for the Court to do just that. But does he have the votes?