By Peter Slevin
Washington Post Staff Writer
Monday, October 12, 2009
Romell Broom knew he was about to die when the Ohio prison warden came to his cell, escorted by guards, and read his death warrant. A court had rejected his final appeal.
Soon, two nurses arrived and told Broom to lie down as they tried to insert a needle into his arm, readying a vein to receive the three drugs that would knock him out and eventually kill him.
The protocol is a familiar one, used by 35 states and the federal government, but the nurses working on Broom on Sept. 15 could not find a suitable vein. They jabbed his arms, his hands, his right ankle and his left leg. Once, they hit a bone. Broom tried to help, then cried.
After about two hours, unable to establish an intravenous connection, authorities called off the execution. Gov. Ted Strickland (D) granted a one-week reprieve, since extended while a federal court considers a defense claim that a second execution attempt would amount to cruel and unusual punishment.
Strickland's decision to delay two more executions and review the way Ohio has executed 32 prisoners since 1999 could influence the way condemned prisoners elsewhere are put to death, according to experts on the death penalty.
"Everything's on the table at this point," said Julie Walburn, spokeswoman for the Ohio corrections department, which has overseen two similar situations since 2006. In the other cases, technicians eventually found veins, and the prisoners were executed.
Walburn said the Strickland administration is all but certain to revise its protocols to deal with cases like Broom's. State officials are also analyzing the effectiveness of the existing three-drug combination and other ways to kill a person with a lethal injection.
"We are taking a very studied approach. This is a complex issue, and we are certainly not going to rush our examination," Walburn said, explaining that Strickland is prepared to delay the scheduled Dec. 8 execution of Kenneth Biros if the new rules are not ready.
"Other states will be watching," said Richard Dieter, executive director of the Death Penalty Information Center, who reported that several states, including Maryland, are working on lethal injection protocols. "Waiting an hour or two hours for this to end, that just doesn't seem right."
The U.S. Supreme Court ruled 7 to 2 in April 2008 that injecting condemned Kentucky prisoners with the typical sequence of three drugs does not meet the Eighth Amendment threshold of cruel and unusual punishment.
"Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of 'objectively intolerable risk of harm' that qualifies as cruel and unusual," wrote Chief Justice John G. Roberts Jr.
The two Kentucky inmates had not asked to avoid execution. Rather, they requested one massive dose of barbiturates, the method used to kill animals.
The current protocol uses thiopental, a barbiturate, to render a condemned inmate unconscious. Pancuronium bromide stops the inmate's breathing and potassium chloride stops the heart.
Attorneys for death row inmates contend that if the initial dose of thiopental does not work properly, the inmate feels "conscious paralysis" and intense pain when the next two drugs are injected.
Mark Dershwitz, a Massachusetts anesthesiologist who advises authorities in Ohio and elsewhere, said last week that a switch to a large dose of thiopental alone is "certainly feasible and plausible."
"The downside is it will take longer for the person to die. A few minutes," Dershwitz said. "The advantage is there's no chance they could be made uncomfortable or pained by the second or third drug, because they're not given."
Most executions by lethal injection occur without complications, but Broom's attorneys contend that he endured a "horrific and torturous event" during last month's failed execution and that it would be unconstitutional to try again. A hearing is scheduled for November.
Broom, 53, was sentenced to die for raping and murdering Tryna Middleton, 14, in 1984. When he woke up on the morning of his scheduled execution, he showered and talked with his brother. Word came that his last appeal had failed.
In a 31-paragraph affidavit drafted two days later, Broom described repeated attempts to locate a vein, interspersed with breaks while nurses and correctional officers collected themselves.
"The male nurse kept saying that the vein was right there, but they could not get it. I tried to assist them by helping to tie my own arm," Broom recalled. "The death squad leader advised me that we were going to take another break and again told me to relax."
Broom said he screamed when nurses mistakenly hit bone and muscle. Other times, he simply wept. After the execution was halted and the nurses left, officers offered him coffee and a cigarette and moved him to the prison hospital.
The U.S. Court of Appeals for the 6th Circuit reviewed Broom's experience and last week granted death row inmate Lawrence Reynolds a stay of execution pending a review. The same day, Strickland moved Reynolds's date with the death chamber to next year.
Judge Jeffrey S. Sutton dissented, maintaining that Reynolds was unlikely to prevail. He also wrote that Ohio's lethal-injection protocol had been proven humane -- and constitutional -- by the fact that Strickland called off the execution.
"That approach removes the foundation for an Eighth Amendment claim," Sutton wrote. "It does not lay the groundwork for one."
Some proponents of the death penalty have asked why there is so much hand-wringing. A letter to the editor of the Zanesville Times Recorder said, "If the death row inmate thinks lethal injection is cruel and unusual punishment, give them the option of dying in the same manner in which they slew their victim."
Ohio's "troubling difficulties" in executing Broom and two other inmates, as the 6th Circuit put it, have not led any other governors to delay executions. When Alabama executed Max Payne on Thursday, he became by Dieter's count the 40th person in the United States to die by lethal injection this year.