Dying in Vein----Is subjecting an inmate to a failed execution cruel and unusual punishment?

On Sept. 15, an execution team of at least 12 people spent over 2 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 1st time in Ohio history that an execution was halted and
rescheduled but it's not the 1st time the state has had trouble
administering a lethal injection. Ohio has had at least 2 other executions
in the past 3 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.

There is only 1 U.S. Supreme Court case that addresses the issue of failed
executions. In 1946, Willie Francis was set to be electrocuted for
murdering a drugstore owner, but there were problems with the electrical
current, and Francis did not die. He returned to death row for almost a
year while the court considered whether a 2nd electrocution was
constitutional. In a 5-4 ruling, the court held that a 2nd execution did
not constitute cruel and unusual punishment. In the case of Francis, it
was unclear how much pain he experienced from the 1st execution attempt.
Broom will have to argue the stress, pain, and trauma of the lethal
injection procedure was substantial.

Death-penalty supporters are skeptical of the claim that Broom suffered
cruel and unusual punishment, saying the one who truly suffered was Tryna
Middleton and her family. Tryna's mother, father, and aunt were all
present at Broom's attempted execution. "Our director said the hardest
conversation was telling [Tryna's] mother and father they had to stop the
execution, because the family was searching for closure," Walburn said.

But the long arm of the law applies to everyone, Sweeney added. "There is
no question that poor, beautiful girl did suffer, but that doesn't change
the fact that the Constitution applies to everyone. Even people who have
been convicted of crimes," Sweeney said.

In the meantime, the ACLU of Ohio has called for a moratorium on all state
executions. "This process needs to be stopped until the state can
guarantee that it satisfies the concerns of due process and the
Constitution," Gamso said.

Currently, Ohio has no 2nd means of execution on the books, so if the
lethal injection procedure is halted by the courts, no individuals will be
executed. This would cause a major backlog for the 168 individuals already
on death row. Since 1999, Ohio has executed 32 prisoners.

Litigation surrounding the potentially flawed lethal injection process in
Ohio was underway before Broom's failed execution. The U.S. District Court
for the Southern District of Ohio will hear claims brought by several
death row inmates this November and Broom's case can only strengthen their
arguments.

(source: Newsweek) 

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