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December 9, 2009

Can one make a unique constitutional argument against a second execution attempt?

This AP article, which is headlined "Judge: Ohio inmate's execution appeal has limits," reports on the federal hearing conducted today concerning Romell Broom's claim that Ohio should not get a chance to try again to execute him after its failed attempt in September:

An Ohio inmate fighting the state's second attempt to execute him will be limited to a simple argument, a federal judge said Wednesday: Does the state, having failed once, have the legal right to try again? 

Beyond that, a recent court ruling likely limits how much condemned inmate Romell Broom could say about pain he might suffer, said U.S. District Court Judge Gregory Frost.

The 6th U.S. Circuit Court of Appeals ruled Monday that death row inmate Kenneth Biros hadn't presented evidence that the state's new backup execution method could cause severe pain in violation of the U.S. Constitution.  Biros, 51, was executed Tuesday for killing a woman he met at a bar in 1991.  He was the first person put to death in the country with a single drug in a lethal injection.

"We all agree that Mr. Broom suffered some pain from that attempted execution process," Frost said.  "We all agree that the state of Ohio intends to proceed again on a second attempt."  But Frost said he doesn't know what Broom's lawyers could present about Broom's experience that would overcome the 6th Circuit's ruling.  Frost said the appeals court ruling appears to limit Broom to his argument over whether the state has the right to carry out a second execution attempt. Lawyers will submit written arguments and Frost will rule within several weeks....

Following Broom's execution try on Sept. 15, which Frost has called a "debacle," the state changed its execution methods to one intravenous drug with a backup method involving intramuscular injection.

Broom said he was stuck with needles at least 18 times, the pain so intense he cried and screamed out.  His attorneys say it would constitute cruel and unusual punishment for the state to try again and would violate Broom's double jeopardy rights, punishing him twice for the same crime....

The only case similar to the botched Broom execution happened in Louisiana in 1946, when a first attempt to execute Willie Francis did not work. Francis was returned to death row for nearly a year while the U.S. Supreme Court considered whether a second electrocution would be unconstitutional. The court ultimately ruled 5-4 against Francis, and he was put to death in 1947.

I assume the Sixth Circuit ruling which Judge Frost is referencing is this 31-page opinion from the Sixth Circuitdated Monday that walks through and rejects all the claims made by Biros concerning Ohio's new one-drug lethal injection protocol.  Though Judge Frost seems wise to recognize that this Sixth Circuit opinion would make it hard for Broom to attack Ohio's new execution method, I cannot help but wonder if there is perhaps a unique constitutional argument that Broom can make to try to preclude a second execution attempt.  Of course, Willie Francis lost such an argument in the Supreme Court back in 1947, but constitutional doctrines have changed and the Eighth Amendment has evolved a lot over the last six decades.

UPDATE:  This local article about the Broom hearing provides more information about the hearing, suggesting that Judge Frost is focused on the issue set out in the question in the title of this post and also that litigation on this issue will likely drag deep into 2010:

"It seems to me that all that's left is a legal argument as to whether the state can attempt to execute Mr. Broom twice," Frost told attorneys for the state and Broom, who was in court wearing an orange prison jumpsuit and shackles on his wrists and ankles.  Broom's attorneys had suggested calling witnesses to testify about the suffering he endured in the first attempt, but Frost decided that written statements will be sufficient....

Broom's lawsuit argues that a second attempt to take his life would violate his Eighth Amendment protection against cruel and unusual punishment.  Frost gave Broom's attorneys until Jan. 8 to file an amended complaint, which would be followed by the state's response.  The judge could order a trial.

He extended a temporary restraining order that prevents the state from setting an execution date for Broom while the case is being considered.  Timothy Sweeney, one of Broom's attorneys, predicted that the next round of legal motions could take as long as four months.

December 9, 2009 at 08:56 PM | Permalink


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Broom owes the state his life. Pain is a foreign currency and not redeemable for this debt.

Posted by: Supremacy Claus | Dec 9, 2009 9:43:19 PM

"Pain is a foreign currency and not redeemable for this debt."

This is of true.

"Broom owes the state his life."

Indeed. And he attempted to pay that debt. Is it any fault of his that the state was unable to collect?

I do think there is a strong case to be made that they cannot try again. Imagine for a moment if this had been an old fashioned hanging and the rope broke. Do they get to string up up again this time using barbed wire? How about a firing squad where all the guns jammed because it was too cold. How many shots does the state get? Indefinite? When does this devolve into torture like a cat toying with a mouse before it lands the killing blow.

It reminds we a lot of the recent Gotti situation. Just how many times can the state attempt to convict the man. I find this desire by the state to try people over and over again unseemly. At some point in time consecutive hung juries becomes a de facto acquittal.

The state has enormous power and could keep on trying to kill this man until he dies of old age. In my opinion the DJ clause was designed to prevent just such abuse.

Of course, the difficult issue is just where do you draw that line short of infinity. One, two, three. To me the DJ speaks to where our founders drew it. You have one chance. Can't do, so sorry. If the overwhelming power of the state can't kill a man in one shot, that's its tough luck.

Posted by: Daniel | Dec 9, 2009 11:40:37 PM

Daniel --

Your arguments were made at length in Francis v. Resweber, 329 U.S. 459 (1947) -- in the dissent.

As to Gotti, the government's power to convict is somewhat circumscribed when its witnesses wind up the night before trial floating in the Hudson River.

Posted by: Bill Otis | Dec 9, 2009 11:58:37 PM

A creditor loses your check for $100,000. Is your debt discharged?

A sheriff loses a prisoner during a transport. This is not an escape attempt. The prisoner makes a good faith effort to find the sheriff, has him paged at the train station. Is the prison sentence waived?

A method of execution is deemed cruel by an appellate court. Is the execution by other methods deemed canceled?

Where is the relevance of the failed execution to the constitutionality of the execution itself.

Posted by: Supremacy Claus | Dec 10, 2009 4:50:28 AM

If we were serious about inflicting a painless death and not merely squeamish, we'd guillotine. This would solve the problem of execution method.

Posted by: Gray Procor | Dec 10, 2009 7:08:54 AM

"Your arguments were made at length in Francis v. Resweber, 329 U.S. 459 (1947) -- in the dissent."

If there's one thing we know about constitutional law, it's that a 5-4 decision decided more than a half century before will be binding precedent per se.

Posted by: Michael Drake | Dec 10, 2009 7:12:16 AM

Yes. Here is an annoying Eighth Amendment argument, a gift to the lawyer.

The state used cheap generic medication, which is not equivalent to brand name medication. As a result, the blood levels were lower, less reliable, and prolonged the times to loss of consciousness and to death.

As to the guillotine, I don't know. Does the brain have 2 minutes to survive without a blood supply? Brain wave telemetry may provide an answer. How would the audience enjoy watching eyes looking around from a detached head for a while. Is it death chamber etiquette to wave back if they see that?

One of those suicide bomber jackets would eliminate the brain in a microsecond. I would volunteer to be executed that way, if the CIA could get me into an Al Qaeda meeting, after my being condemned by the criminal cult enterprise.

Here. Iran's criminal cult enterprise wants to off offensive bloggers (offensive on any of many, many subjects). Death penalty may be the only way to control this modern phenomenon, they conclude. I agree.


Posted by: Supremacy Claus | Dec 10, 2009 9:06:06 AM

Michael Drake --

Here are some other oldies whose overruling you might relish: Mapp (1961), Gideon (1963), Miranda (1966). Or is precedent on shaky ground only when it favors the government?

P.S. The key vote in Resweber was cast by Felix Frankfurter, a Roosevelt appointee and arguably the most distinguished professor Harvard Law School ever had.

Posted by: Bill Otis | Dec 10, 2009 9:37:25 AM

Regardless of whether Francis is should be overruled, the district court and 6th circuit had better follow it.

Or the state should start using lidocaine with their IV starts. Then the condemned wouldn't really be able to complain even if there were a huge number of attempts.

Posted by: Soronel Haetir | Dec 10, 2009 9:51:05 AM

Bill, Frankfurter's vote was based on the assumption that the Eighth Amendment was NOT applicable to the states and so is, in some sense, only applicable to a claim based purely on due process. Since it is now established that the Eighth Amendment is applicable to the states, Frankfurter's key vote is on somewhat shaky ground.

Posted by: Doug B. | Dec 10, 2009 9:54:53 AM

The august Justice Frankfurter's concurrence was based on a presumption that the bill of rights was not incorporated in the 14th Amendment, and thus only an overarching notion of due process---not the specific limitations of the double jeopardy and cruel and unusual punishments clauses---applied against the state. And even under this limited (and long since abrogated) standard of review, he didn't exactly slam the door on second-attempt claims; he specifically said that under different circumstances a second attempted execution might violate due process.

As for Mapp, Gideon, and Miranda, unlike those cases, Resweber has not been reaffirmed by substantial majorities of the Court dozens or even hundreds of times. Indeed, almost no one had heard of Resweber before the Broom case arose, and it is possible that it has been this very obscurity that has saved its outdated reasoning from the scrapheap thus far.

A more instructive comparison might be to Wolf v. Colorado, a Frankfurter opinion written two years after Resweber, holding that the exclusionary rule does not apply to the states. Frankfurter's opinion in that case was a product of the same soon-to-be-outdated doctrinal analysis he applied in Resweber, and it was duly overruled in Mapp.

Posted by: Ghost of Harold Burton | Dec 10, 2009 10:23:14 AM

Doug --

Just so. But Frankfurter DID analyze the case under the Constitution's Due Process Clause, in terms virtually identical to the "evolving standards of decency" theory now applicable to the states under the Eighth Amendment, see, e.g., Kennedy v. Louisiana. Here, for example, is one telling paragraph of Frankfurter's concurring opinion:

"I cannot bring myself to believe that for Louisiana to leave to executive clemency, rather than to require, mitigation of a sentence of death duly pronounced upon conviction for murder because a first attempt to carry it out was an innocent misadventure, offends a principle of justice "rooted in the traditions and conscience of our people." See Snyder v. Massachusetts, supra, at 105. Short of [p471] the compulsion of such a principle, this Court must abstain from interference with State action no matter how strong one's personal feeling of revulsion against a State's insistence on its pound of flesh. One must be on guard against finding in personal disapproval a reflection of more or less prevailing condemnation. Strongly drawn as I am to some of the sentiments expressed by my brother BURTON, I cannot rid myself of the conviction that, were I to hold that Louisiana would transgress the Due Process Clause if the State were allowed, in the precise circumstances before us, to carry out the death sentence, I would be enforcing my private view, rather than that consensus of society's opinion which, for purposes of due process, is the standard enjoined by the Constitution." ###

Frankfurter's use of the "consensus of society's opinion" theory eerily presages, and is a virtual carbon copy of, the Court's mode of Eighth Amendment analysis in Kennedy v. Louisiana (and other modern cases applying the Eighth Amendment to the states).

Given that, and given the absence of any authoritative evidence that there is a public consensus against the state's trying it again, it's very likely that Frankfurter would vote the same way today.

Posted by: Bill Otis | Dec 10, 2009 10:39:23 AM

Ghost of Harold Burton --

Or, to briefly summarize: Precedents favoring criminals are good and get preserved, and precedents favoring the prosecution are bad and get tossed.

Now THAT is principled adjudication, I tell you!

P.S. It doesn't always work that way. See Payne v. Tennessee, overruling Booth v. Maryland, and -- far more famously -- Gregg, effectively overruling Furman.

Posted by: Bill Otis | Dec 10, 2009 11:29:32 AM

As a purely pragmatic matter, a constitutional rule that allows the state just one try for executions seems to be a very bad idea. We want the state to be able to call off an execution attempt when it runs into technical problems. We do not want to give state officials an artificial incentive to ignore problems and to keep poking at the prisoner until his lawyers manage to get a court order.

As a matter of constitutional law, I cannot see how a second try would be cruel and unusual punishment. There's no principal of cosmic fairness that forbids a second execution attempt: if the state releases a prisoner by mistake, it can presumably re-imprison him or her. Broom can argue that he will suffer psychologically during the second execution attempt in a way that other prisoners would not: this may be his best argument. It is difficult to imagine, though, that the extra psychological pain that might result from having lived through one execution attempt is very significant compared to the psychological distress that is inherent in any execution.

Posted by: matth | Dec 10, 2009 11:33:16 AM

SC. "A creditor loses your check for $100,000. Is your debt discharged?"

The problem with this line of argument is an annoying little thing called the Constitution. If the Constitution held that there was a DJ for debts then the logic would apply. But that's not the facts.

The reason I brought up Gotti is because he illustrates, legal theory aside, that there just is a *practical* limit to the attempts the government can take. And once that point is conceded, that the government can't try indefinitely, the question becomes where do you draw the line.

As a matter of theory I might concur that there is no reason to stop at just one. The problem is that's not what the Constitution says. The word "double" in Double Jeopardy means you can't do it twice.

It's most ironic and really delves into the outright hypocrisy of conservatives when they argue for Stare Decis on an opinion that's contra-textual. The fundamental fact is that the words "three" or "four" or even "indefinite" don't appear in the Constitution. And the idea that trying to kill him again doesn't put his life in "jeopardy" is so bizarrely contra-factual that it doesn't even deserve a comment.

Posted by: Daniel | Dec 10, 2009 11:49:29 AM

by that rationale, Daniel, he should then be let go . . . .

Posted by: federalist | Dec 10, 2009 12:19:14 PM

Daniel --

"The problem with this line of argument is an annoying little thing called the Constitution."

And if the Constitution or any Supreme Court case interpreting it said, "A failed execution attempt shall not be repeated," you'd be right. But it doesn't.

The only Supreme Court case on point looks the other way.

Matth made an excellent point: The same reasoning that would forbid a second try at an execution would also forbid re-incarceration after an erroneous release. There have been all manner of erroneous releases over time, but to my knowdge not a single case has held, or come close to holding, that re-incarceration on the original sentence violates any part of the Constitution.

What the Double Jeopardy Clause forbids is RELITIGATION of guilt or sentencing, not REIMPOSITION of the sentence when it has not been completed.

(Nor is re-litigation of guilt always prohibited, as, for example, in the common instance of a hung jury).

Posted by: Bill Otis | Dec 10, 2009 12:56:29 PM

Reincarceraton does not offend the law; but the person erroneously released will get credit for all street time

Posted by: anon 20 | Dec 10, 2009 4:50:36 PM

Doug --

I agree with your conclusion that Justice Frankfurter's vote is on shaky ground because of the way he analyzed the incorporation issue. However, isn't it fair to ask whether his "numerous abortive attempts" hypothetical comes to life with Broom's case? Arguably, Frankfurter would vote with his dissenting colleagues because what Broom faced was 14-18 different attempts to establish an IV line. Even if that doesn't fit his hypothetical, I'd argue that a second attempt (at a later date) to establish IV lines, or even using Ohio's new "Plan B" of intra-muscular injection, would be another attempt.

If that factually can fit his hypothetical, doesn't Broom stand a chance? This isn't like "Lucky" Willie Francis, where they threw the switch once and stopped once it was clear he wouldn't die. Broom's case is like the Louisiana officials flipping the switch over and over.

Last point, what about Chief Justice Roberts' opinion in Baze? If you'll recall, he cites Resweber for the proposition that an isolated mishap does not a cruel and unusual punishment make. However, is he wrong about how he's characterized that plurality opinion? And is he ignoring Frankfurter's seemingly leaving the door open for a Broom-type challenge?

Posted by: Nick | Dec 10, 2009 6:59:04 PM

Nick --

Do you actually believe that repeatedly sticking a needle in a person's arm (something that happens in hospitals across the country hundreds of times a day) is like repeatedly trying to electrocute him??


Posted by: Bill Otis | Dec 10, 2009 7:25:40 PM

Federalist. You'd be right except for the bothersome words "life or limb". He's only been put in DJ for his life, not his limb.

Bill. SHOUTING doesn't put words into the Constitution that are not there. The word "Relitigation" doesn't exist in the document.

Just because the law, in your mind, is settled doesn't mean it's settled right.

Posted by: Daniel | Dec 11, 2009 12:52:34 AM

Daniel --

"Just because the law, in your mind, is settled doesn't mean it's settled right."

That's for sure. For example, Alito's dissent in Kennedy v. Louisiana is far more convincing than Kennedy's majority opinion, larded as it is with cheap high-mindedness. The settled law that the DP can NEVER be imposed for child rape, no matter how horrible, for sure is not settled right.

Same deal with Miranda, which in terms of extra-Constitutional "analysis" and judicial legislating may be an all time high (or low).

What the words of the Fifth Amendment forbid is a "compelled" statement, not an "unwarned" statement. The notion that every unwarned statement is ipso facto compelled is preposterous. Some will be; others won't. But the Court wrote in "unwarned" anyway. So now it's "settled" -- but it's still not right.

So as a general matter I agree with you. As to the Broom case in particular, how many people do you really think would regard a second attempt to find a suitabe vein as barbarous?

Posted by: Bill Otis | Dec 11, 2009 4:39:04 PM

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