A Collaboration with the University of Pittsburgh

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

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."

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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