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September 21, 2009

"Dying in Vein: Is subjecting an inmate to a failed execution cruel and unusual punishment?"

The title of this post is the headline of this new piece appearing on-line at Newsweek.  Here is how it begins:

Can a vein save a convicted killer?  It the case of Romell Broom — it might. Broom was sentenced to death for raping and murdering 14-year-old Tryna Middleton on Sept. 21, 1984. Broom isn't supposed to be alive to witness the 25th anniversary of Middleton's death — but he is.  Last Tuesday, the execution team at the Southern Ohio Correctional Facility spent several hours trying unsuccessfully to find a viable vein for a lethal injection. Now, Ohio is faced with the difficult task of determining whether it can try to execute Broom a second time, after it botched the first attempt.

Related posts on botched Broom execution attempt:

September 21, 2009 at 06:29 PM | Permalink


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Professor Berman,

I thought you might appreciate a contrarian view from a prosecutor. Needless infliction of pain is morally different thing than pain incident to a lawful purpose. (I would agree that there are limits to morally acceptable pain incident to a lawful purpose -- for example, execution by stoning or beheading exceed the "incident" nature and becomes an intended goal.)


Yours in justice,

Dave Yost

Posted by: dave yost | Sep 21, 2009 8:02:11 PM

Thanks for chiming in, Dave, and also for linking to your blog post. Do you have an opinion at to whether the removal of the statutory language you recommend would then be applicable in Broom's case? Just curious.

Posted by: Doug B. | Sep 21, 2009 10:01:53 PM

I am surprised at Newsweek's lame attempt at turning the headline of the story into a pun. Such inappropriate journalism trivializes the seriousness of what was taking place from both the perspective of the defendant and the family of the victim. I have witnessed an execution and both the family of the victim and the family of the defendant deserve that what is happening is accompanied by respect.

bruce cunningham

Posted by: bruce cunningham | Sep 21, 2009 10:34:14 PM

Hear hear, Bruce.

Posted by: JC | Sep 21, 2009 11:12:03 PM


Whether a statutory change would apply retroactively would turn, I think, on whether the existing language created a substantive right or was merely a procedural regulation. An interesting question, and it would turn in no small part on the factual record developed through litigation.

As a practical matter, I doubt very much the Legislature could act swiftly enough to impact Mr. Broom's case, but there are others similarly situated. I have one such defendant on Death Row -- perhaps I will one day have an opportunity to brief the question.


Posted by: dave yost | Sep 22, 2009 3:29:40 AM

Is the jail sentence canceled because the jailer failed to lock a door? I cannot find a statute or precedent indicating a mistake or failure of the authorities cancels a sentence.

Government does nothing well. If the prisoner were having expensive surgery, the anesthesiology people would have gained access to a vein in about a minute, to avoid getting yelled at for delaying surgery. Give one of them a contract to start the IV. Immunize the person from the biased left wing ideologues on the licensing board. Criminalize any licensing investigation of an experienced medical person participating in an execution.

The lawyer allows only a complicated medical like procedure of execution for the benefit of the lawyer client. When it temporarily fails, the lawyer uses the failure as a legal pretext to prevent the execution. Only 10% of us will have a painless death. Why is the client of the lawyer supposed to have nothing but the best experience? Because it generates lawyer jobs, with the tiniest glitches causing huge and expensive disputes.

Pretextual advocacy violates Rule of Conduct 3.3, Candor toward the tribunal. The lawyer has a duty to tell the court, nothing about the death penalty will ever satisfy his abolitionist bias, and that the court should ignore all lawyer gotchas in this context.

Posted by: Supremacy Claus | Sep 22, 2009 6:53:29 AM

Was the pain really "punishment" in the 8th amendment sense if there was no deliberate indifference to the risk thereof? They meant to kill him, not hurt him.

And there are no depths to which time and newsweek will not sink to provide a catchy title and an article that ends with "but one thing is certain." At least there's no requirement that the title of every article have a colon in it!

Posted by: Gray Proctor | Sep 22, 2009 8:46:31 AM

How is this case different from Louisiana ex rel. Francis v. Resweber?

Posted by: Greg Jones | Sep 22, 2009 11:55:40 AM

these people are incompetent. letting them have another go is certainly cruel.

the state must design a humane method for this guy, bad veins and all. ignoring the "incident" pain is just as bad as saying it's ok to use a hacksaw because it's ok to use a guillotine. ridiculous.

Posted by: anonymouse | Sep 22, 2009 3:21:28 PM

Greg Jones --

"How is this case different from Louisiana ex rel. Francis v. Resweber?"

A good question that no one bothers to answer or even acknowledge. I gather the answer is that those opposed to this execution believe that outrage and a holier-than-thou attitude trumps relevant, if not controlling, precedent.

It used to be considered bad practice to ignore Supreme Court precedent when making a legal argument, but I guess "hope and change" have altered that landscape.

Posted by: Bill Otis | Sep 22, 2009 7:52:02 PM

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Posted by: Laser Surgery Varicose Veins | Dec 31, 2009 7:08:27 AM

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