In a case that is an uncomfortable echo of a death do-over in 1947, an Ohio death row inmate who avoided lethal injection when technicians could not find a vein has asked a judge to bar a second attempt to “torture him to death.”

Romell Broom

Romell Broom's civil rights lawsuit is likely to test the precedent of Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947), in which the U.S. Supreme Court held it was not cruel and unusual punishment under the Eighth Amendment to re-execute Willie Francis in Louisiana's electric chair.

Ohio Gov. Ted Strickland called off Broom's execution last week after technicians spent about two hours trying to find a vein suitable for IV insertion. Any do-over has been stayed pending the outcome of the suit that Broom, 52, filed against the state Sept. 18.

“What happened to Broom on September 15, 2009, at defendants' hands and under their direction was inhuman and barbarous,” the complaint says. “It exhibited cruel indifference to Broom's rights. It should not be permitted again.”

As detailed in a recent book, Francis, 18, survived the initial attempt to electrocute him when the equipment failed to deliver sufficient current. He was executed a year later after the Supreme Court ruled there is no Eighth Amendment violation “[w]hen an accident, with no suggestion of malevolence, prevents the consummation of a sentence.”

The case was a close one with only four justices signing the plurality opinion and Justice Felix Frankfurter suggesting in a concurrence that “a hypothetical situation, which assumes a series of abortive attempts at electrocution or even a single, cruelly willful attempt” would present a difference case.

Broom argues that Resweber does not require his re-execution. “While Defendants['] actions may not rise to 'malevolence,' they have certainly demonstrated willful indifference to the problems with Ohio's lethal injection protocol,” he says in a motion for a preliminary injunction, citing IV insertion mishaps in at least two recent executions.

“Defendants have been on notice for several years of this problem. They ignored it,” he says.

But it is unclear whether the courts will view the botching of Broom's execution as a “series of abortive attempts” which implicate the Eighth Amendment or an “accident.” In finding Kentucky's lethal injection protocol constitutional last year, the Supreme Court reiterated that

an isolated mishap alone does not give rise to an Eighth Amendment violation, precisely because such an event, while regrettable, does not suggest cruelty, or that the procedure at issue gives rise to a “substantial risk of serious harm.” Baze v. Rees.

The humane approach is that of the Resweber dissent in which Justice Harold H. Burton said any lack of malevolence toward Francis during the first attempt to electrocute him did not mean his rights were not violated.

“The intent of the executioner cannot lessen the torture or excuse the result,” he wrote. “It was the statutory duty of the state officials to make sure that there was no failure.”

There is no doubt that Broom was tortured –- technicians punctured his skin 18 times while searching for a vein and reporters observed him grimacing from pain. He has a due process right to a quick and painless execution and Ohio's failure to provide him with one at the first attempt should preclude it from a death do-over.

By Matthew Heller
9/23/09