A federal judge has intervened and issued a stay in the case of Romell Broom, the Ohio inmate whose execution was delayed last week when executioners could not find a suitable vein. After two hours of “poking,” Ohio Gov. Ted Strickland ordered executioners to stop and try again a week later. U.S. District Court Judge Gregory Frost has decided that’s not enough time to determine if a ‘second execution’ is cruel and unusual punishment.
Broom’s attorneys plan to argue that a second execution attempt would be cruel and unusual punishment under the Eighth Amendment, as it would impose an “unconscionable” amount of physical and mental anguish on Brown. To be sure, something deep down says it’s wrong to put a man in a chair and attempt to execute him twice. But is that type of anguish any different from the anguish every prisoner faces in anticipating his/her sentence?
In 1989, the European Court of Human Rights (ECHR) ruled that, in some situations, “the ever present and mounting anguish of awaiting execution of the death penalty” is simply too much. See Soering v. United Kingdom [PDF]. Scholars have dubbed this anguish “death row phenomenon.” I’m not familiar with any U.S. case staying an execution becuase of a prisoner’s physical/mental anguish while anticipating his execution. Nevertheless, there have been a few suggestions from a Justice or two that the sensitivities of death row inmates may present real Constitutional questions.
If a U.S. court nullifies Broom’s execution, that might be a step towards accepting the ECHR’s premise that some executions are simply too mentally trying. Such a conclusion would raise a host of new questions. How much mental anguish is too much? What situations raise special anguish? Is “mental anguish” objectively judged or something we examine on an individual basis?
Alternatively, the Court could rely on the physical pain suffered by Broom during the first injection to nullify any second attempt. In 2008, the Supreme Court reaffirmed that “a series of abortive attempts” at execution could well be unconstitutional because it would cause a “substantial risk of serious harm.” Baze v. Rees [PDF]. Resting on physical pain, rather than mental pain, would avoid any slippery slope into death row phenomenon arguments. If the Court concludes that Broom’s mental anguish is enough to stop the sentence, however, it should be prepared to face a plethora of Soering-like arguments in future death penalty cases.
-Michael
