A man whose botched two-hour execution added to the controversy surrounding the death penalty will face the lethal injection gurney a second time, after a ruling Wednesday by Ohio’s Supreme Court.
In a 4-to-3 decision, the court rejected arguments by death row inmate Romell Broom’s attorneys, who said that allowing the state prisons agency a second opportunity amounted to cruel and unusual punishment and double jeopardy. Mr. Broom was convicted in 1984 of abducting, raping, and murdering a 14-year-old girl.
"Because Broom’s life was never at risk since the drugs were not introduced, and because the state is committed to carrying out executions in a constitutional manner, we do not believe that it would shock the public’s conscience to allow the state to carry out Broom’s execution," Justice Judith Ann Lanzinger wrote.
Two of her fellow judges disagreed, publishing separate dissents.
The details of what happened to Mr. Broom on that gurney “chills me to the core” wrote Justice William O’Neill. “Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time. Now we embark on the task of doing it again.”
Botched executions appear to have played a role in both a decrease in support for the death penalty among Americans, as well as a decline in its application.
In 2015, the number of prisoners executed in the United States fell to its lowest in 25 years (28) and the number of people sentenced to death dropped to its lowest point in 41 years (49), according to the Death Penalty Information Center (DPIC). So far in 2016, eight people have been executed by lethal injection, DPIC figures show.
“The low rates of executions probably have as much to do with lethal injection’s practical problems as with principled objections to the death penalty,” wrote Leah Libresco in an analysis on the data site 538 that found that half of the stays issued in 2015 were because of issues surrounding the method of execution, rather than questions about the morality of the death penalty overall.
According to Gallup, the percentage of Americans who oppose the death penalty rose to 37 percent in 2015, the highest rate in 44 years. Six states have abolished the death penalty since 2007, most recently Nebraska in 2015. Thirty-one states still allow it. Since the European Union banned exports of drugs for the purpose of executions in 2011, death penalty states, such as Ohio, have turned to different formulations. Ohio is also one of the states facing shortages of the drugs as a result of the ban.
One legal expert denounced Wednesday’s ruling, saying there is no legal precedent for it. Given the number of failed and drawn-out executions since 2009, as well as issues obtaining drugs, Broom may now be in a worse position.
"I find that unacceptable. First of all there's no precedent that because the drugs didn't make it into his system that that would be the basis for deciding that this wasn't an attempted execution," says Deborah Denno, the Arthur A. McGivney Professor of Law at Fordham University in New York.
The majority opinion cited the Willie Francis case (Francis v. Resweber) as precedent for Ohio to attempt an execution of Broom for a second time, but Professor Denno disagrees.
The Willie Francis case was an execution in 1946, where the executioners failed to generate a strong enough electrical current, leaving Mr. Francis able to walk away from the electric chair. The case then went to the Supreme Court in 1947, where the justices ruled in favor of allowing the state of Louisiana a second chance to electrocute Francis, which was successful.
“That’s a Supreme Court Case in 1947, before the Eighth Amendment ‘cruel and unusual punishment’ clause even applied to states,” Denno says. “The cruel and unusual punishment clause didn’t even apply to states until 1962 in this country.”
No date has been set for a second execution for Broom, CNN reported. Ohio is still grappling with shortages of lethal-injection drugs.