Ohio must halt executions until they are correctly and humanely administered under the law

Commentary

Ohio must halt executions until they are correctly and humanely administered under the law

September 24, 2009 07:37:00 pm

Edited by:

Jeffrey M. Gamso [Partner, Gamso, Helmick & Hoolahan, on behalf of the Cleveland Coalition Against the Death Penalty]: "Ohio is now uniquely in the position of three badly botched executions in the just over three years. On May 2, 2006, it took some 87 minutes to effect the execution of Joe Clark, who cried out, "It don't work, it don't work" and then was heard moaning and groaning while the execution team worked behind closed curtains to secure adequate veinal access. On May 24, 2007, it took 113 minutes to secure veinal access and then execute Christopher Newton. And of course two hours of failure to secure access and allow Romell Broom's execution to go forward. The Governor's announced plan to try again in a week (a plan stopped when Judge Frost of the Southern District of Ohio issued an agreed and now extended stay) was built on fiction and doomed to failure.

The fiction of the plan was that somehow Mr. Broom's veins would be in better shape a week after some 18 sticks than they were before, and that access a team of inadequately qualified prison employees couldn't achieve on September 15, they would miraculously attain on September 22. But the plan was also based on the legal fiction that what happened to Mr. Broom had no legal consequence. The Willie Francis case (Louisiana ex rel. Francis v. Resweber) in 1947 predated the Trop v. Dulles plurality formulation that the 8th Amendment had to be measured by the "evolving standards of decency that mark a maturing society," and before those standards had, well, evolved. But more to the point, as Chief Justice Roberts noted in Baze v. Rees, Justice Frankfurter's concurrence in Resweber establishes that a series of abortive attempts at execution would violate the 8th Amendment because they would demonstrate an "objectively intolerable risk of harm." So what consequences for Mr. Broom whose veins will not likely be regenerating any time soon? There is simply no reason to believe that what Ohio couldn't do competently on September 15, it will be able to do competently in the future.

The problem is not just Broom, however. With three botched executions in three years, what can be expected in the future? Lawrence Reynolds is due to be executed on October 8, Darryl Durr on November 15, others in the months after that. What are the odds? When does unpredictable error become a consequence of reckless indifference? And how does any of this comport with Ohio's execution statute (Ohio Rev. Code Section 2949.22, which) uniquely calls for death by lethal injection to be effected "quickly and painlessly?" We aren't doing it, at least not consistently. And we show no ability to do it consistently.

Plainly and simply, Ohio needs to give up the effort to kill Romell Broom. Beyond that, it needs either to give up executions altogether, or at least put them on hold until it can figure out a way to ensure compliance with human decency, the 8th Amendment, and its own law."

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Martin Luther King Jr. wrote his Letter from Birmingham Jail

On April 16, 1963, an incarcerated Martin Luther King, Jr. (arrested for demonstrating in defiance of a court order) wrote his Letter from Birmingham Jail in response to a published statement by eight fellow clergymen from Alabama.

Part of the letter read: We have waited for more than 340 years for our constitutional and God-given rights. The nations of Asia and Africa are moving with jetlike speed toward gaining political independence, but we stiff creep at horse-and-buggy pace toward gaining a cup of coffee at a lunch counter. Perhaps it is easy for those who have never felt the stinging dark of segregation to say, "Wait." But when you have seen vicious mobs lynch your mothers and fathers at will and drown your sisters and brothers at whim; when you have seen hate-filled policemen curse, kick and even kill your black brothers and sisters; when you see the vast majority of your twenty million Negro brothers smothering in an airtight cage of poverty in the midst of an affluent society; when you suddenly find your tongue twisted and your speech stammering as you seek to explain to your six-year-old daughter why she can't go to the public amusement park that has just been advertised on television, and see tears welling up in her eyes when she is told that Funtown is closed to colored children, and see ominous clouds of inferiority beginning to form in her little mental sky, and see her beginning to distort her personality by developing an unconscious bitterness toward white people; when you have to concoct an answer for a five-year-old son who is asking: "Daddy, why do white people treat colored people so mean?"; when you take a cross-county drive and find it necessary to sleep night after night in the uncomfortable corners of your automobile because no motel will accept you; when you are humiliated day in and day out by nagging signs reading "white" and "colored"; when your first name becomes "nigger," your middle name becomes "boy" (however old you are) and your last name becomes "John," and your wife and mother are never given the respected title "Mrs."; when you are harried by day and haunted by night by the fact that you are a Negro, living constantly at tiptoe stance, never quite knowing what to expect next, and are plagued with inner fears and outer resentments; when you are forever fighting a degenerating sense of "nobodiness" then you will understand why we find it difficult to wait. There comes a time when the cup of endurance runs over, and men are no longer willing to be plunged into the abyss of despair. I hope, sirs, you can understand our legitimate and unavoidable impatience. Read the full text of the Letter.