A Re-Execution in Ohio

To legally kill death row inmates, most states use a three-drug lethal injection protocol. One drug is designed to anesthetize the inmate (sodium thiopental), one drug paralyzes him and stops his breathing (pancuronium bromide), and the third drug stops his beating heart (potassium chloride). Executions without an anesthetic drug would be unbelievably painful, and would almost certainly violate the Eighth Amendment's ban on cruel and unusual punishment. Executions would simply fail without the drug that kills. The paralytic drug, however, serves no humane purpose. In fact, quite the opposite: when the anesthetic drug doesn't work, the inmate is paralyzed but feels incredible pain when the death drug arrives. It's a shocking thing our government does, behind closed doors. The ACLU has of course challenged the use of this paralytic drug in federal court, after several botched executions in California, the state with the nation's most populous death row. This legal challenge helped impose California's current 3 1/2-year moratorium on executions. More California death row inmates have committed suicide than have been executed since 1976.

But the paralytic drug isn't the only problem with lethal injection. As many medical personnel know, some people have difficult veins to stick. The same holds true for death row inmates, including Romell Broom of Ohio. In an appalling story that should give us all pause, executioners in the state of Ohio this week gave up on their attempt to execute Broom, a convicted rapist and killer, when they could not find a suitable vein to inject the drugs. Broom, to his credit, squeezed his fist (and sweated bullets) in an attempt to assist his killers.

Broom's lawyers are headed to court. Now Ohio and likely some federal courts will have the sick task of coming up with a rationale for the state to execute Broom a second time, without violating the Eighth Amendment. The state could, of course, simply commute his sentence to life imprisonment without chance of parole, but that would be too simple (and heck, it might encourage other death row inmates to make their own veins difficult to stick). No, the state will undoubtedly argue that executing the same person twice does not constitute cruel and unusual punishment, and the Ohio courts will without question rubber-stamp that logic. But should the case reach the federal courts, Ohio's attorney general may have a tougher time convincing a judge that the state's lethal injection protocol, which failed to execute Broom, is constitutional after all. It's a case worth watching.

UPDATE, 9/19:
A federal judge has stepped into Romell Broom's case, giving him and his lawyers a 10-day reprieve. The temporary restraining order prevents Ohio from executing Broom next week, as the state had planned. Instead, Broom will testify in court Monday about his botched execution. This is fantastic news.