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March 18, 2016

"How many times should a state be able to try to execute someone without running afoul of the Constitution?"

The question in the title of this post is the first line of this notable new commentary authored by Austin Sarat concerning the work of the Ohio Supreme Court  in Ohio v. Broom (previously discussed here).  Here is more of the commentary:

[T]he Ohio Supreme Court ruled on Wednesday that neither the federal nor the state constitution forbids Ohio from trying to execute someone more than once.  While this ruling may set up another opportunity for the U.S. Supreme Court to consider the constitutionality of capital punishment, it nonetheless allows the nightmarish possibility that the state can proceed in a negligent manner in carrying out an execution and, if it fails in the first attempt, to try, try again.  This should shock and trouble those who support capital punishment as well as those who oppose it....

On Sept. 15, 2009, Broom, who had been convicted of kidnapping, rape, and murder, was brought to Ohio's death chamber where he was to be executed by lethal injection.  His executioners repeatedly attempted to insert an intravenous line into Broom's arms and legs.  As they did so, Broom winced and grimaced with pain.  At one point, he covered his face with both hands and appeared to be sobbing, his stomach heaving.

After an hour had passed, Broom tried to help his executioners, turning onto his side, sliding the rubber tubing that served as a tourniquet up his left arm, and alternatively squeezing his fingers together and apart. Even when executioners found what they believed to be a suitable vein, it quickly collapsed as they tried to inject the saline fluid. Broom was once again brought to tears. After more than two hours of executioners sticking Broom's arms and legs with the needle, the prison director decided that the execution team should rest.  The governor of Ohio issued a reprieve stopping the execution....

It is almost certain that the Bromell case now will make its way to the U.S. Supreme Court and that it will offer that court the chance to revisit the unfortunate precedent it set more than 60 years ago [allowing Louisiana to try again after a failed electrocution in the Francis case].

One can only hope that the Court will now insist that if the government is going to carry out executions that there be no room for error. Neither simple human decency nor the 8th Amendment can tolerate a government carrying out a death penalty sentence in a shoddy manner.  If we are going to have a death penalty, we cannot allow death, as the dissenting justice in the Francis case put it, to be carried out on the installment plan.

Prior related post:

March 18, 2016 at 10:04 AM | Permalink


Until they get it right.

Posted by: Soronel Haetir | Mar 18, 2016 10:43:25 AM

To be honest, I don't think there would be a bar on the number of times to attempt an execution, only whether or not botching it is cruel and unusual. I certainly think whether they're successful or not is a factor to consider, but if there is a lawful death sentence, it makes sense that they're able to carry it out provided it otherwise complies with the Eighth Amendment.

Posted by: Erik M | Mar 18, 2016 1:55:19 PM

It probably relies on the extent of the "trying."

For instance, if it is a matter of repeatedly taking a person, latching him or her on the table etc., that can be psychologically damaging etc. Might not be enough for the 8A or state analogues that might have a somewhat stronger standard.

But, if you have to repeating stab the person with needles here, apply voltage like in the 1940s case or actually repeatedly have the person consume the drugs (it failing a couple times), it is going to cross the line at SOME point.

Posted by: Joe | Mar 18, 2016 2:25:23 PM

Typical Sarat nonsense.

He writes:

"One can only hope that the Court will now insist that if the government is going to carry out executions that there be no room for error. "

Constitutionality has never had perfection as a standard and never can. Obviously.

Posted by: dsharp | Mar 19, 2016 11:19:33 AM

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