From the Execution Chamber Back to the Courtroom

Romell Broom's lawyers will return to court tomorrow, just days removed from the botched execution of their client. They will argue that trying to execute Broom a second time would constitute cruel and unusual punishment, in violation of his Eighth Amendment rights, as well as a violation of his 14th Amendment due process rights. Lawyers for the state of Ohio will likely argue that because the three-drug lethal injection cocktail never reached Broom's veins, that a second go-around is just fine.

It's worth taking a look at some pertinent language from the Supreme Court's 2008 ruling in Baze v. Rees, when the Court upheld Kentucky's lethal injection procedure as constitutional. In his plurality opinion, Chief Justice John Roberts hinted at where the Court might say, "Enough is enough":

Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of “objectively intolerable risk of harm” that qualifies as cruel and unusual. In Louisiana ex rel. Francis v. Resweber, a plurality of the Court upheld a second attempt at executing a prisoner by electrocution after a mechanical malfunction had interfered with the first attempt. The principal opinion noted that “[a]ccidents happen for which no man is to blame,” and concluded that such “an accident, with no suggestion of malevolence,” did not give rise to an Eighth Amendment violation.

As Justice Frankfurter noted in a separate opinion based on the Due Process Clause, however, “a hypothetical situation” involving “a series of abortive attempts at electrocution” would present a different case. In terms of our present Eighth Amendment analysis, such a situation—unlike an “innocent misadventure”—would demonstrate an “objectively intolerable risk of harm” that officials may not ignore. In other words, an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.”

Roberts suggests in Baze that multiple execution attempts may indeed prove too much for the Constitution to bear. Let's see if the lower courts follow that logic. I certainly hope so.