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DYING IN VEIN

Is subjecting an inmate to a failed execution cruel and unusual punishment?

Krista Gesaman

Sep 21, 2009
Newsweek Web Exclusive
http://www.newsweek.com/id/215924

Can a vein save a convicted killer? In the case of Romell Broom—it might. Broom was sentenced to death for raping and murdering 14-year-old Tryna Middleton on Sept. 21, 1984. Broom isn't supposed to be alive to witness the 25th anniversary of Middleton's death—but he is. Last Tuesday, the execution team at the Southern Ohio Correctional Facility spent several hours trying unsuccessfully to find a viable vein for a lethal injection. Now, Ohio is faced with the difficult task of determining whether it can try to execute Broom a second time, after it botched the first attempt.

On Sept. 15, an execution team of at least 12 people spent over two hours trying to prepare Broom for the three-drug lethal injection. Technicians were able to locate several veins, but none of those veins were strong enough to administer the injection. "The team is required to test the viability of the site with a saline solution, but when they flushed the solution through Mr. Broom's IV site the veins became unusable, meaning the saline solution would not flow through his veins," said Julie Walburn, chief communications officer at the Ohio Department of Rehabilitation and Correction.

Dehydration or past drug use may cause veins to collapse. During one part of the execution preparation, Broom admitted to being a past drug user, but moments later, he recanted that statement, Walburn said. Medical testing done prior to the execution didn't indicate that Broom was dehydrated, she added.

Members of the execution team notified prison director Terry Collins that Broom's veins likely couldn't withstand lethal injection. Collins contacted Gov. Ted Strickland, who issued a seven-day reprieve of the execution.

Broom's execution was originally rescheduled for Sept. 22—but that won't be his last day either. On Friday, U.S. District Judge Gregory Frost issued a 10-day temporary restraining order that will prohibit the second execution attempt from happening. A new execution date cannot be set unless someone, it could be the state or the victim's family, files a motion with the Ohio Supreme Court. So far, no motion has been submitted. In the meantime, Broom's attorney will begin to litigate U.S. Constitution, Ohio Constitution, and Ohio statutory claims on his client's behalf. "Broom should not be executed because the state tried once and failed," said Tim Sweeney, Broom's defense attorney. Sweeney hopes Broom's prison sentence will be converted from death row to life in prison.

During the attempted execution, Broom was pricked more than 18 times to find usable veins on both arms and one leg. Some of those injections hit bone or muscle. "The pain, suffering and distress to which Broom was subjected on Sept. 15, 2009, went well beyond that which is tolerated by the United States and Ohio Constitution," Sweeney stated in court documents filed with the Ohio Supreme Court. "It was a form of torture that exposed Broom to the prospect of a slow, lingering death, not the quick and painless one he was promised and to which he is constitutionally entitled if he is going to be executed by the State."

Ohio is the only state that has a statute that requires a quick and painless execution. But the amount of pain that Broom actually suffered is being debated. "He wiped his brow with a tissue, and he was conscious of the cameras that were on him," Walburn said. "He didn't appear to be crying, but I do think he became frustrated over time."

This may be the first time in Ohio history that an execution was halted and rescheduled—but it's not the first time the state has had trouble administering a lethal injection. Ohio has had at least two other executions in the past three years that didn't go according to plan. In 2006 it took prison officials 87 minutes to execute Joseph Clark, and in 2007 an execution team struggled for one hour and 53 minutes before Christopher Newton was pronounced dead. The process should run about 18 minutes, said Jeff Gamso, former legal director of the American Civil Liberties Union of Ohio. "Ohio is incapable of consistently and reliably finding a way to perform lethal injections competently," Gamso said.