Ohio can try to execute an inmate for the second time, seven years after a failed attempt at inserting an IV, the state's supreme court ruled Wednesday.
In 2009, multiple executioners tried for two hours to set an IV into Romell Broom, who was sentenced to death for raping and killing a 14-year-old girl. Broom argued that attempting to execute him again would be cruel and unusual punishment, and would be "double jeopardy" — a violation of the Fifth Amendment.
But in a 4-3 opinion, the court held that the state can attempt to execute him again since the execution drugs weren't used in the initial attempt.
"There is no question that lethal drugs did not enter Broom's body," Justice Judith Ann Lanzinger wrote. "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. Because there is no violation of the Fifth Amendment protection against double jeopardy, the state is not barred from a second attempt to execute Broom's death sentence."
After one of the unsuccessful attempts, blood ran down Broom's arm, causing one of the executioners to rush out of the room, according to court documents. Another executioner was sweating profusely after several failed attempts, but they continued to try.
Ohio tried inserting the IV at 18 different injection sites — although the actual number of insertions is believed to be much higher, as the state re-used sites at different angles in a technique called "fishing."
Broom covered his eyes and began to cry from the pain. The regional director of Ohio's Department of Rehabilitation and Correction at the time, Edwin Voorhies, said it was the first time he had seen an inmate cry during the IV-inserting process.
A doctor attempted to insert the IV — disobeying the instructions of the warden to only observe the process — and struck bone, causing Broom to scream in pain.
The state deviated from its protocol in Broom's case, and in several other executions around this time, but the court said it did not amount to a constitutional violation.
"We agree that compliance with execution protocols is the best way to avoid the risk of severe pain, but deviation from a protocol is not an automatic constitutional violation," Lanzinger wrote.
"We are not convinced, however, that Broom has established that the state is likely to violate its execution protocol in the future."
A dissent authored by Justice Judith French argued there should, at least, be an evidentiary hearing.
"The evidence in the record, if believed, would establish that the state has repeatedly and predictably had problems establishing and maintaining access to inmates’ veins, that these problems are the result of medical incompetence on the part of the execution team members responsible for inserting IV catheters, and that the incompetence of the execution staff makes it more than likely that these problems will recur in future executions," she wrote.
In another dissent, Justice William O’Neill wrote that the "description of the state’s first attempt to put Broom to death chills me to the core. It is not only the rights of the defendant that are in play here. There are state employees who have tragically endured the personal trauma of unsuccessfully attempting to execute a fellow human being. And now we, as a society, are telling them, 'Do it again.'"
Although Ohio may attempt to execute Broom again, that doesn't mean it will happen anytime soon. The state has had problems obtaining execution drugs and is now sparring with the Food and Drug Administration over whether it can import sodium thiopental from overseas. The FDA maintains it would be illegal.