The Botched Ohio Execution and Supreme Court Precedents

On September 15, 2009, the state of Ohio failed in its attempt to execute death row prisoner Romell Broom. Guards spent two hours unsuccessfully trying to find suitable veins for the lethal injection, even with Broom's assistance. At first, the execution was set for a week later, but the question of whether Ohio will be allowed to attempt the execution a second time has raised many constitutional questions.  Would such repeated attemps constitute cruel and unusal punishment that is banned by the Eighth Amendment?  Was the first attempt equivalent to "torture or a lingering death," or to forced experimentation on a human subject?  Would that apply to a second attempt?  Should other Ohio inmates be subject to the same uncertain process?

What follows are relevant excerpts from U.S. Supreme Court rulings and opinions of individual Justices on the constitutional limits of state punishment.

"Punishments are cruel when they involve torture or a lingering death . . ." In re Kemmler, 136 U.S. 436, 447 (1890).

"The basic concept underlying the Eighth Amendment is nothing less than the dignity of man. While the State has the power to punish, the Amendment stands to assure that this power be exercised within the limits of civilized standards." Trop v. Dulles, 356 U.S. 86, 100 (1958).

"This punishment (stripping a person of citizenship) is offensive to cardinal principles for which the Constitution stands. It subjects the individual to a fate of ever-increasing fear and distress." Trop v. Dulles, 356 U.S. 86, 102 (1958). 

"Taking human life by unnecessarily cruel means shocks the most fundamental instincts of civilized man. It should not be possible under the constitutional procedure of a self-governing people. Abhorrence of the cruelty of ancient forms of capital punishment has increased steadily until, today, some states have prohibited capital punishment altogether. It is unthinkable that any state legislature in modern times would enact a statute expressly authorizing capital punishment by repeated applications of an electric current separated by intervals of days or hours until finally death shall result." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 473-74 (1947) (Burton, J., dissenting with 3 other Justices).

"Although the failure of the first attempt, in the present case, was unintended, the reapplication of the electric current will be intentional. How many deliberate and intentional reapplications of electric current does it take to produce a cruel, unusual and unconstitutional punishment? . . . Lack of intent that the first application be less than fatal is not material. The intent of the executioner cannot lessen the torture or excuse the result. It was the statutory duty of the state officials to make sure that there was no failure." Louisiana ex rel. Francis v. Resweber, 329 U.S. 459, 476-77 (1947) (Burton, J., dissenting with 3 other Justices). 

"The true significance of these (unconstitutional) punishments is that they treat members of the human race as nonhumans, as objects to be toyed with and discarded. They are thus inconsistent with the fundamental premise of the (cruel and unusual punishments) Clause that even the vilest criminal remains a human being possessed of common human dignity." Furman v. Georgia, 408 U.S. 238, 272-73 (1972) (Brennan, J., concurring). 

"[A]lternatives (to the current method of lethal injection) must effectively address a 'substantial risk of serious harm.' To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain. If a State refuses to adopt such an alternative in the face of these documented advantages, without a legitimate penological justification for adhering to its current method of execution, then a State's refusal to change its method can be viewed as 'cruel and unusual' under the Eighth Amendment." Baze v. Rees, No. 07-5439 (U.S. 2008).

 

More information on the Broom execution-attempt can be found here. See also Botched Executions and Lethal Injection.