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From DPIC
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. |
From DPIC
Justice David H. Souter on the Death Penalty
Excerpts from Supreme Court Opinions:
"A law that requires execution when the case for aggravation has failed to convince the sentencing jury is morally absurd, and the Court’s holding that the Constitution tolerates this moral irrationality defies decades of precedent aimed at eliminating freakish capital sentencing in the United States." - Kansas v. Marsh (2006), Justice Souter dissenting "Today, a new body of fact must be accounted for in deciding what, in practical terms, the Eighth Amendment guarantees should tolerate, for the period starting in 1989 has seen repeated exonerations of convicts under death sentences, in numbers never imagined before the development of DNA tests. We cannot face up to these facts and still hold that the guarantee of morally justifiable sentencing is hollow enough to allow maximizing death sentences, by requiring them when juries fail to find the worst degree of culpability: when, by a State’s own standards and a State’s own characterization, the case for death is 'doubtful.'" - Kansas v. Marsh (2006), Justice Souter dissenting ~
"Defendants are harmed, of course, when racial discrimination in jury selection compromises the right of trial by impartial jury, but racial minorities are harmed more generally, for prosecutors drawing racial lines in picking juries establish ‘state-sponsored group stereotypes rooted in, and reflective of, historical prejudice.'" - Miller-El v. Dretke (2005), Justice Souter Opinion of the Court "[T]he very integrity of the courts is jeopardized when a prosecutor's discrimination 'invites cynicism respecting the jury's neutrality,' and undermines public confidence in adjudication." - Miller-El v. Dretke (2005), Justice Souter Opinion of the Court ~ In Stringer v. Black (1992), the Supreme Court held that a defendant could still benefit from a recent decision made years after the defendant was sentenced because the principle in that decision was not new and would have been obvious to a jurist at the time of his trial. Justice Souter wrote the dissenting opinion, joined by Justices Scalia and Thomas. "The majority [says] no reasonable jurist could have failed to discover a concern with randomness in this Court's individualized-sentencing cases, or have failed to realize that a sentencer's weighing of a vague aggravating circumstance deprives a defendant of individualized sentencing. I think this answer endues the jurist with prescience, not reasonableness." - Stringer v. Black (1992), Justice Souter dissenting See Supreme Court.
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In Kansas v. Marsh (2006), the Supreme Court held in a vote of 5 to 4 that a Kansas statute requiring that a death sentence be imposed when a jury finds that the aggravating and mitigating circumstances in a case have equal weight was constitutional. Justice Souter, disagreeing with the Court's decision, authored the dissenting opinion.
In Miller-El v. Dretke (2005), the Supreme Court held (6-3) that a Texas death row inmate tried in Dallas County was entitled to a new trial due to strong evidence of racial bias during the jury selection process in the original trial. In selecting a jury, prosecutors struck 10 of 11 qualified black panelists, conducted disparate questioning of white and black jurors, and utilized a jury selection manual that emphasized race.
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