Unconstitutional Imcompetence
Whether the State of Ohio one day successfully puts convicted Romell Broom to death probably will not change the shape of the debate over capital punishment in America. But the way in which the State of Ohio has tried and thus far failed should.
Broom sits today on death row, two weeks after his scheduled execution, after his executioners made national news by trying for some two hours, without success, to administer Broom's lethal injection. The account retold by Liliana Segura of AlterNet is nothing short of harrowing.
In sum, after poking and prodding for two hours, during which Broom wiped his face, wept, and attempted to help his executioners find a vein -- "He turned over on his left side, slid rubber tubing designed to clarify his veins up his left arm, then began moving the arm up and down while flexing and closing and opening his fingers" -- the team finally stopped, upon order of Ohio governor Ted Strickland, who issued a temporary reprieve.. . .Meanwhile, Adele Shank, one of his attorneys, who was present for the execution, described her client as "traumatized.""It really hurt him, I mean physically hurt him," she said."Indeed, by the time the whole mess came to an end, the execution team had attempted to find a vein in both his arms and "at least one leg," according to reports.A report in the Cleveland Plain Dealer described how Broom "lay back on his bed, covered his face with his hands, and cried.""Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles."
Astonishingly, this is not the first time in recent memory that Ohio has run upon technical problems in its tinkerings with the machinery of death. As CNN.com recounted, Broom's was at least the third Ohio execution since 2006 to present executioners with anything but the quick, clean procedure that lethal injection has been advertised as. One condemned man was treated to an execution so incompetently administered that he repeatedly told his attendants, failingly searching for a vein, "It don't work."
All of which begs the question: even if capital punishment isn't per se unconstitutional, has the State of Ohio, through these repeated blunders, waltzed itself into the realm of cruel and unusual punishment?
Think about it like this. If you cause five-car pileups every other time that you pull out onto the interstate, the state takes away your driver's license -- not to punish you, but because your track record demonstrates that your risk of screwing up is too high to tolerate. Aren't we dealing with the same problem in Ohio? Hasn't the State of Ohio demonstrated that, for whatever reason, it is incapable of guaranteeing with any acceptable degree of certainty that it will be able to administer lethal injections in a manner that does not amount to cruel and unusual punishment?
In last year's much-ado-about-nothing Baze v. Rees decision, the Supreme Court explained that the Eighth Amendment is violated in the face of a "substantial" or "objectively unreasonable" risk of harm but quickly iterated that "an isolated mishap alone does not give rise to an Eighth Amendment violation[.]"
But with three botched executions in three years, hasn't Ohio traversed that Rubicon?
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