An execution had not begun when an IV line could not be established to deliver lethal drugs into an inmate’s body even though a needle was inserted multiple times, and neither the U.S. nor Ohio constitution bars the state from carrying out the execution, the Ohio Supreme Court ruled today.

The Supreme Court ruled 4-3 that a second attempt to execute Romell Broom by lethal injection would not violate the cruel and unusual punishment or the double jeopardy clauses of the federal and state constitutions. Justice Judith Ann Lanzinger stated in the majority opinion that by law the death penalty begins with the application of lethal drugs, and since the execution team stopped after it could not keep an IV catheter functioning, Broom’s punishment had not started.

In separate opinions, dissenting justices countered that Broom is entitled to a hearing to prove a second attempt would also fail under the state’s procedures, and that the first attempt constituted cruel punishment.

Execution Halted After Two Hours
Broom was convicted in 1985 for the kidnapping, rape, and murder of 14-year-old Tryna Middleton in East Cleveland. He was sentenced to death. Broom’s sentence was upheld by the Ohio Supreme Court in 1988, and after he exhausted his federal appeals and other postconviction remedies, his execution was scheduled for September 2009.

The day before the execution, a nurse and technician trained to draw blood assessed Broom’s veins and found his right arm had veins that appeared to be accessible for a lethal injection while veins in the left arm seemed less so. The next day, two execution team members began to prepare Broom by attempting to insert a catheter into his left arm. After three attempts on the left side, the team made three insertions into his right arm. The team waited and then made two more insertions, which caused Broom to scream aloud in pain. Another attempt resulted in the IV catheter going into the vein, but it failed to stay in sending blood down Broom’s arm. The team found that when the needle was inserted and saline started to drip Broom’s veins would bulge, making them unusable.

Ohio Department of Rehabilitation and Correction Director Terry Collins called for a break about 45 minutes into the process to consult the prison medical team, which reported they had a “clear concern” about the ability to obtain a usable vein, but concluded there was a reasonable chance of access. The team members proceeded by examining Broom’s areas around his elbows, hands, and legs for injection sites. Broom cried when they also attempted to reuse previous insertion sites in his arms, which were swollen and bruised after the multiple punctures. The physician at the Southern Ohio Correctional Facility in Lucasville was called, and she attempted to start the catheter in Broom’s foot, where she struck a bone and he screamed in pain. Another execution team member unsuccessfully tried to start the IV in his ankle.

After what was estimated to be two hours of attempts and breaks, the execution was halted. Physicians examining him afterward found 18 injection sites that led to considerable bruising and tissue damage.

Broom Seeks to Block Second Execution Attempt
Broom initiated state and federal legal actions to bar his execution, arguing a second attempt would violate the U.S. Constitution’s Eighth Amendment’s prohibition on cruel and unusual punishment and the Fifth Amendment’s right against double jeopardy.

Broom’s federal habeas case was stayed pending a lawsuit he initiated in Cuyahoga County Common Pleas Court. In April 2011, the trial court denied Broom’s request for an evidentiary hearing where he sought to prove that any future attempt to execute him would be unconstitutional.

The trial court found the repeated needle sticks to be “unpleasant” but not in violation of the Eighth Amendment, and the Eighth District Court of Appeals affirmed the decision, which Broom appealed to the Supreme Court.

State Sentencing Law Affects Double Jeopardy Claim
Justice Lanzinger explained that part of a double jeopardy claim is the right not to be punished twice for the same offense, and noted both Article 1, Section 10 of the Ohio Constitution and the federal Fifth Amendment forbid it.

Broom argued that the attempt to execute him began with the reading of the death warrant or with the first insertion of a needle. Once the process began, Broom stated he had a reasonable expectation that his death would take place on the date of his execution, and that subjecting him to it again would be a forbidden second punishment.

Justice Lanzinger cited R.C. 2949.22(A), which states “a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs.” Establishment of the IV lines were a necessary preliminary step, but did not by itself place the prisoner at risk of death, she said.

“There is no question that lethal drugs did not enter Broom’s body. The execution attempt was halted after preparations to establish a viable IV line were unsuccessful,” Justice Lanzinger wrote.

“As the statute makes clear, the execution commences when the lethal drug enters the IV line. In this case, because the attempt did not proceed to the point of injection of a lethal drug into the IV line, jeopardy never attached.”

Since Broom was not in jeopardy of death during the first execution attempt, it would not be double jeopardy to attempt again Justice Lanzinger wrote.

Pain During Attempt Not Enough to Constitute Cruelty
Citing the U.S. Supreme Court’s 1890 In re Kemmler and 1981 Rhodes v. Chapman decisions, Justice Lanzinger wrote that the high court holds punishments are cruel “when they involve torture or a lingering death,” or “involve the unnecessary and wanton infliction of pain.” She noted more recent decisions require a prisoner to demonstrate that the method of execution would present a substantial risk of serious harm, and that there must be a feasible, readily available alternative that can significantly reduce the risk of severe pain.

Because the state was not intentionally trying to cause unnecessary physical pain or psychological harm, the pain and emotional trauma Broom experienced do not rise to the level of torture prohibited by the Eighth Amendment.

The Court rejected Broom’s argument that the state should have known beforehand that there would be difficulties with the lethal injection based on problems maintaining an IV catheter during two previous executions. Justice Lanzinger observed that the state has carried out 21 executions since the attempt to execute Broom.

“We simply are unable to conclude that Broom has established that the state in carrying out a second attempt is likely to violate its protocols and cause severe pain,” she said.

The Court stated that with the use of better technique by the execution team and following new protocols established by the state, the execution can proceed without causing an inappropriate amount of pain.

“To be clear, the state must comply with the protocol as amended. Strict compliance with the protocol will ensure that executions are carried out in a constitutional manner and can also prevent or reveal an inmate’s attempt to interfere with the execution process,” Justice Lanzinger wrote.

The Court also held that the Ohio Constitution will not be violated by a second execution attempt.  Broom’s argument that due process required a hearing was rejected because an evidentiary hearing is not automatic, and the trial court did not abuse its discretion in ruling on the petition based on voluminous evidence and written arguments.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell and Sharon L. Kennedy joined the decision.

Justice French Finds Broom Entitled to Hearing
In a dissenting opinion, Justice Judith L. French contended the majority misapplied the law and contradicted itself by finding a trial court hearing was not necessary.

Justice French determined the majority failed to consider Broom’s argument of a substantial risk of serious harm. The Court majority noted it was “unclear from the record why Broom’s execution team was unable to establish IV access,” Justice French wrote. She suggested the majority concluded that because Broom cannot prove why the errors occurred, then he cannot prove they will recur, which is an unfair burden on Broom.

She wrote that Broom’s petition to the trial court contained enough disputed facts to warrant a hearing, and that the record reveals the state “has repeatedly and predictably had problems” maintaining access to inmates’ veins, that the problems are a “result of medical incompetence on the part of the execution team members,” and the incompetence makes it likely the problems will recur in future executions.

Justice French suggested the majority paid little attention to the expert medical evidence about the multiple injections and poor techniques used to insert the catheter, and a doctor’s assessment that the state continues to have lax standards on who may install a catheter during an execution.

“In the face of this evidence, it is disingenuous to dismiss Broom’s petition on the grounds that it is ‘unclear’ why the execution team was unable to establish IV access,” she wrote. “And if the majority believes that the cause is unclear, that is all the more reason to have an evidentiary hearing to resolve the question.”

Justice French added that the majority also fails to explain how it concluded that Broom will likely not suffer severe pain in the future because there has been no evidence presented that the state has improved its training of execution team members or increased the skill requirements of those inserting a catheter.

“If the state cannot explain why the Broom execution went wrong, then the state cannot guarantee that the outcome would be different the next time,” she wrote.

Justice Paul E. Pfeifer concurred with Justice French’s opinion.

Second Attempt Would Be Cruel and Unusual, Justice O’Neill Concluded
In his dissent, Justice William M. O’Neill contends a second attempt would violate the Eighth Amendment, saying the majority’s description of the first attempt chilled him to the core.

“Once again, this case demonstrates that the term ‘lethal injection’ is merely a convenient euphemism used to aid in turning a blind eye to the real possibility that execution procedures can and do go wrong with predictable and horrendous results,” he wrote.

He wrote that any “fair reading” of the record for the first attempt shows Broom was actually tortured. He concluded that a second attempt after one extremely painful and unsuccessful attempt constitutes the “lingering death” element the U.S. Supreme Court recognized as cruel 125 years ago in the In re Kemmler decision.

2012-0852. State v. Broom, Slip Opinion No. 2016-Ohio-1028.

View oral argument video of this case.

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