News and Developments 2009: Executions

On November 13, Ohio announced that it was adopting a single-drug protocol for lethal injection, making it the first state to embrace this change.  Ohio will inject inmates with a large dose of an anesthetic, thiopental sodium, which is supposed to both render the inmate unconscious and eventually cause death. The state also said it will employ a back-up method of execution involving the injection of two anesthetic drugs into the muscle of the defendant.  In September, Ohio failed in its execution of Romell Broom, halting the process after two hours when guards could not find a suitable vein for the injection. Subsequent executions were placed on hold as state officials sought more effective ways of administering lethal injection. The state had been having a hard time finding medical personnel to consult with about lethal injection procedures because of professional and ethical rules that generally prohibit doctors, nurses and others from being involved in capital punishment. Read the Associated Press article about this development below.

Retired Federal Appeals Court Judge H. Lee Sarokin recently offered a harsh critique of the death penalty, especially challenging the botched execution attempt of Romell Broom in Ohio in September. Citing morality, arbitrariness, and the dim prospects of closure for the murder victims’ families, Judge Sarokin called the imposition of the death penalty an erratic and flawed process that should not be permitted to continue. “The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.“

Regarding Ohio's lethal injection process, Judge Sarokin said it would be unconstitutional to subject the defendant to a second execution attempt: “It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn't cruel and unusual punishment, I do not know what is!“ He continued, “Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?“ Read the entire article below.

The partial timeline below of the attempted execution of Romell Broom in Ohio on Sept. 15 was compiled by the Cleveland Plain Dealer, Sept. 17, 2009; reporter Peter Krouse.  The entire timeline can found by clicking here.

Tuesday

5:08 a.m.: Broom awakens for the day.
5:51 a.m.: Broom is escorted to the shower.
6:27 a.m.: Broom eats breakfast of cereal.
8:07 a.m.: The chemicals used in Ohio executions -- thiopental sodium, pancuronium bromide and potassium chloride -- are delivered to the death house.
9:31 a.m.: Execution preparations put on hold while the 6th U.S. Circuit Court of Appeals weighs a last-minute appeal request.
12:28 p.m.: Broom eats a lunch of creamed chicken, biscuits, green beans, mashed potatoes, salad and grape drink.
12:48 p.m.: The 6th Circuit says it will not review the appeal. Execution scheduled to begin at 1:30 p.m.
1:24 p.m.: First round of lethal drugs is destroyed.
1:31 p.m.: Replacement drugs are delivered to the death house.
2:01 p.m.: Medical team enters holding cell and begins trying to insert IVs.
2:30 p.m.: Unable to find a usable vein, team leaves the cell to take a break.
2:42 p.m.: Team members back in cell trying again.
2:44 p.m.: Prisons director Terry Collins tells the medical team to take another break.
2:49 p.m.: Broom wipes his face with a tissue, appears to be crying.
2:57 p.m.: Broom asks that his attorney, Adele Shank, be allowed to watch. Around 3 p.m.: Tim Sweeney, a Cleveland attorney also representing Broom, sends a letter to Ohio Supreme Court Chief Justice Thomas Moyer asking the court to stop the execution on the grounds that Broom is suffering cruel and unusual punishment.

Romell Broom (pictured) was to be executed at 10 AM on Tuesday, September 15, in Ohio.  The execution was delayed as the U.S. Court of Appeals for the Sixth Circuit considered granting him a hearing.  When that temporary stay was lifted, the execution process began again with a searching for a suitable vein in Broom's arm to insert an IV and to inject the lethal chemicals.  However, after two hours of fruitless endeavor, the correctional officers were unable to complete the execution.  Governor Ted Strickland intervened and granted a week-long stay of execution while the state evaluates its procedures.  Ohio has had a series of problems with its lethal injection process.

Professor Ty Alper of the Boalt School of Law at Berkeley has written an article for the forthcoming edition of the North Carolina Law Review entitled “The Truth About Physician Participation in Lethal Injection Executions.”  Prof. Alper, a noted death penalty expert, reviews the available research and recent litigation on the most widely used method of execution in the U.S., focusing especially on the potential role of doctors in executions.  As states are challenged to ensure that inmates do not suffer excruciating pain during lethal injections, Alper contends that physician participation is more plausible than many states are willing to admit.  He states that many doctors are willing to and, in fact, do regularly participate in executions. He argues that defense attorneys are obligated to protect their clients from unneccessary pain and that states have exaggerated their inability to find willing doctors.  The article may be found here.