On 15 September 2009, Romell Broom woke to what he thought was the last day of his life. He was scheduled to be executed by lethal injection at 10:00 by the U.S. state of Ohio. His crime? The 1984 abduction and murder of 14 year old Tryna Middleton. At 09:30, the 6th U.S. Circuit Court of Appeal temporarily stayed his execution to consider a last minute appeal. This was denied at 12:48 and the execution rescheduled to commence at 14:00.
The execution team entered Broom’s cell and began trying to find a suitable vein for the intravenous line that would carry the cocktail of three drugs into his body and ultimately cause his death (sodium pentathol to anaesthetise him, pancuronium bromide to paralyse him and stop him breathing and potassium chloride to stop his heart). Despite trying for over two hours and with Broom’s efforts to help them find a vein, they were unable to insert the intravenous line into Broom’s body. On the one occasion that they did find a vein, it immediately collapsed as saline solution was pumped through it.
At 16:07, it was clear to Terry Collins, director of the Southern Ohio Correctional Facility who was presiding over the execution, that his team would be unable to perform the execution. He informed the Governor of Ohio, Ted Strickland. Strickland immediately granted Broom a one week reprieve so the Ohio Department of Corrections could advise him how best to proceed. Broom became only the second person in the modern era of capital punishment in the United States of America to survive an execution.
Needless to say, during the one week reprieve, Broom’s legal team obtained a preliminary injunction from the United States District Court to stop further attempts at executing him until a full appeal could be heard. On 18 September 2009, Broom filed a petition with the Ohio Supreme Court seeking permanent injunctive relief to stop the state of Ohio from ever attempting to execute him again. The petition, which the Ohio Supreme Court are yet to respond to, makes two important human rights arguments which I will attempt to explore further.
Broom’s first argument is that further attempts at executing him would result in him being punished for the same crime twice, infringing the double jeopardy rule contained in the Fifth Amendment to the United States Constitution. It is this author’s humble opinion that this is unlikely to succeed.
When Broom was sentenced, his punishment for his crime was death. It is self evident that Broom’s death has not yet happened. It is therefore difficult to understand the reasoning behind his legal team’s assertion that another attempt at execution would go against the Fifth Amendment, as he has not yet received the punishment for his crime. It appears that Broom’s argument hinges on a decision by the US Supreme Court in Baze v Rees, which suggested that multiple failed attempts at execution could amount to an infringement of the double jeopardy rule. No doubt Broom will argue that each attempt at finding a vein amounts to an attempt at the execution, however it is much more likely that the court will view the whole procedure as a single attempt, thus meaning that the decision in Baze v Rees could not be invoked.
A further problem with this rationale comes from the fact that it is not uncommon for executions to be stayed by the courts after the execution process has started. On occasions, intravenous lines have already been inserted into the inmates arms before the court has stepped in to temporarily halt the execution. The courts have not accepted that starting the procedure again invokes the double jeopardy rule and I can see no reason why they wouldn’t come to a similar conclusion in this case.
Broom’s second and more substantive argument is that a further attempt at executing him would go against the Eighth Amendment to the United States Constitution, namely, that it would be a cruel and unusual punishment. This is indeed a strong line of argument. Broom was pierced at least 18 times by needles in an attempt to find a suitable vein. This left him shaken, bruised and in a great deal of pain. Further attempts by the state to execute him would no doubt lead to further pain being suffered. There is also a great deal of uncertainty about whether or not a vein could actually be found on a second attempt. Broom’s veins are exactly the same as they were at the time of his first execution attempt. Further attempts at finding a vein would almost certainly cross the threshold of cruel and unusual punishment and therefore Broom has a good chance of succeeding using this line of argument.
In response to the failed execution, the state of Ohio have made two changes to their execution procedure in order to try and prevent the same problems happening again. Firstly, they have changed from a three drug procedure as discussed above, to a single drug procedure (An overdose of pentobarbital is now used, which causes anaesthesia followed by cardiac arrest). The second change that they have made is that, should they fail to insert an intravenous line, an intramuscular injection (which is much easier to insert) would be used instead. There are a number of issues associated with this however. It is widely accepted that a greater amount of pain is associated with an intramuscular injection rather than one done intravenously. There is a much greater chance of the needle hitting a pain receptor and the injected drug can cause a severe reaction in the area. A more concerning issue however is the fact that rather than being injected straight into the blood stream, the drug must first pass through the muscle. This leads to a much longer death. For both these reasons, it is difficult to accept Ohio’s argument that the changes that they have made to their execution procedure will mean that a future attempt at executing Broom would be free from breaching the Eighth Amendment.
Given all of the above, Broom would be right in thinking that his life now hangs in the balance. The only thing that he can be sure of is that years of legal argument will ensue in the courts to determine whether he lives or dies. The judges in the case clearly have some difficult decisions to make.