Is a second execution attempt cruel and unusual?

A lethal-injection team tried for about two hours to find a usable vein, then gave up. Romell Broom, a convicted rapist-murderer, says another try would be unconstitutional.

By Carol J. Williams

Los Angeles Times

September 19, 2009

http://www.latimes.com/news/nationworld/nation/la-na-execute-redux19-2009sep19,0,3631123.story

As executioners poked his limbs with an IV needle, Romell Broom initially tried to speed along his own demise, flexing his arm and tugging on a rubber tourniquet to better expose a vein on the inside of his elbow.

But as prison workers repeatedly failed to find a vein strong enough to take the lethal injections, the convicted rapist-murderer began to despair over his protracted end. Witnesses and the execution-team log from Tuesday describe how the 53-year-old winced and cried as a shunt inserted in his leg also failed to open a pathway for the fatal drugs.

Two hours and 23 minutes after it started, Ohio Gov. Ted Strickland halted the execution and scheduled a second attempt for a week later.

The aborted execution has renewed concerns about lethal injection, and raises the question of whether a second execution attempt would violate the 8th Amendment prohibition of cruel and unusual punishment.

On Friday, one of Broom's attorneys filed lawsuits in state and federal court alleging that another execution attempt would violate Broom's civil rights. U.S. District Judge Gregory L. Frost issued a temporary restraining order putting off the attempt for at least 10 days. The attorney, Tim Sweeney, also appealed to the U.S. Supreme Court to review the case.

Only once before has a state's execution failed, legal scholars say. In 1946, 17-year-old Willie Francis walked away from Louisiana's "Gruesome Gertie" electric chair after a 2,500-volt current coursed through his body.

"The issue with Willie Francis was, can you re-execute him, or would that be cruel and unusual punishment or double jeopardy?" said Deborah Denno, a Fordham University law professor and death penalty expert.

A divided high court decided in 1947 that Louisiana could lawfully subject Francis to execution again. A second electrocution killed him a year and three days after the first attempt.

"But so many aspects of that case are so outdated or so specific to Willie Francis and that time that even though it is entrenched precedent with the U.S. Supreme Court and frequently cited, one would look at the Broom case very differently," said Denno, whose writings on execution methods were cited by the U.S. Supreme Court majority in last year's decision upholding the constitutionality of lethal injection in Kentucky.

"I think we're in a new day in our treatment of human beings," said Richard Dieter, executive director of the nonprofit Death Penalty Information Center.

"To subject someone to being at the brink of death, then yank them back because the state couldn't carry out its own procedures . . . suggests the whole lethal injection process is in need of further review," said Dieter, who has expressed views against capital punishment.

The Supreme Court took what some analysts saw as a narrow look at lethal injection in the Kentucky case, Baze vs. Rees. The state had carried out only one other execution in recent years and, as in the Francis decision, the court found no pattern of flaws with methods.

Other states held off on executions until the justices in April 2008 ruled lethal injection a humane means of execution if carried out correctly.

All 35 states that allow the death penalty use a similar -- though not identical -- three-drug process. It is often administered by corrections officers rather than doctors because the American Medical Assn. advises against physician participation in executions.

Death penalty opponents say the Broom incident should at least compel Ohio to impose a moratorium on executions and review the procedures.

"Ohio has a history here. It's not just him. He's the third guy in three years where we've had essentially variations on the same problem," said Jeff Gamso, volunteer attorney and former legal director for the ACLU of Ohio. He was referring to the executions of Joseph Clark in 2006 and Christopher Newton in 2007 in which prison workers took more than an hour and two hours, respectively, to kill the inmates because of trouble locating veins.

Some legal scholars said they expected little legal consequence from the Ohio incident.

"This certainly put someone through anxiety and stress, but whether that rises to cruel and unusual punishment -- I doubt the Supreme Court at the end of the day would agree with that," said John Eastman, dean of the Chapman University School of Law in Orange

Robert Weisberg, a Stanford University law professor and director of the Stanford Criminal Justice Center, said public opinion has been little affected by previous cases where executions were botched.

What is likely to happen, he said, is an incremental backing off from capital punishment because of the costs, delays and mounting concerns about executing the innocent.

Last year, 37 people were executed nationwide, the lowest number in 14 years, partly because of states' review of execution procedures. And 111 death sentences were issued, compared with more than 300 a year in the mid-1990s.

Since 1973, 135 people have been exonerated and freed from death rows, five of them this year.

Weisberg said California is a prime example of a state that retains a death penalty in theory yet rarely conducts executions despite having the nation's biggest death row, with 685 condemned prisoners.

In California, executions have been on hold since early 2006: Lethal injections have failed to fully anesthetize inmates in six of the 13 executions conducted in the state since capital punishment resumed in 1976.