By Evan Wilson
For the third time in three years, the state of Ohio’s execution team spent well over an hour trying to locate a suitable vein on an inmate through which to administer a lethal injection. Yet, Romell Broom’s attempted execution on September 15, 2009 is the first time the State has ever had to halt and reschedule an execution because the team could not establish an intravenous drip. The Governor’s warrant of reprieve postponing the execution said that, “[d]ifficulties in administering the execution protocol necessitate a temporary reprieve . . . .” The media has drawn attention to the effects of these difficulties, like the pain Broom likely felt from being poked 18 times with a needle, sometimes penetrating to the bone, or the frustration of the victim’s family, forced to watch the grueling, and ultimately unsuccessful process. Some have even focused on the pattern of “difficulties” that has emerged in lethal injections in Ohio, contending that surely they constitutes more than a mere “innocent misadventure,” as described by the US Supreme Court in Baze v. Rees. (holding that Kentucky’s lethal injection protocol did not constitute cruel and unusual punishment, but noting that repeated abortive attempts at an execution might). Broom’s failed execution and the ineptitude it reveals are magnified by the failure of due process to prevent such a situation. Only two weeks before his scheduled execution, the Sixth Circuit Court of Appeals had rejected Broom’s claims warning that just such a failure might occur.
After waiting on Ohio’s death row for nearly 25 years, Broom’s appeals and clemency efforts finally failed completely in 2007. He then intervened in Cooey v. Strickland, challenging the constitutionality of lethal injection as administered in Ohio. The case was filed in the Southern District of Ohio where it was dismissed for violating the statute of limitations. The Sixth Circuit agreed and held on September 1, 2009 that there could be no recourse for Broom against Ohio’s execution protocol, even if it violated the Eighth Amendment’s prohibition of cruel and unusual punishment, because his claims came too late. It was not relevant to the court that Broom was still involved in post-conviction appeals at the time it said he should have begun litigation challenging the method of his execution so as to satisfy the statute. Requiring that death row inmates pursue multiple paths of litigation at the same time, places a heavy burden on attorneys and their clients and challenges traditional notions of fair play and substantial justice in litigation. The injustice of these decisions is only heightened by the ironic proximity of Broom’s failed execution to the extinguishment of his claims.
Had Broom’s claims succeeded under the statute of limitations, they still would have been held to the extremely high standard set forth in Baze, requiring that plaintiffs adequately prove an alternative execution method to be “feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.” Death row inmates must accomplish all of this from prison, with no income and limited resources. Such an impossibly high standard matched with limited means prevents death row inmates like Broom from effectively challenging their method of execution, even in well-founded cases. Broom’s failed execution is more than just an exemplar of the cruel and unusual nature of lethal injection, but also of the high barriers the courts have erected against any challenges to that method. The heightened barriers created by cases like Baze and Cooey and the inability of people like Broom to overcome them shows that what failed in Ohio was not just an execution protocol, but due process.
