The Supreme Court has ruled that execution by lethal injection does not constitute cruel and unusual punishment. But that has not endowed state executioners with the competence or the proper drugs to always perform those executions smoothly or humanely. Indeed, the past few years have seen highly publicized examples of botched executions, most notably that of Clayton Lockett, an Oklahoma murderer who kicked, grimaced and survived for 43 minutes after his execution began in April 2014. The problem there, officials later said, was properly inserting the IV needle to administer the deadly poison and a lack of training on what to do when things went wrong.

In a 5-4 ruling, the Supreme Court voted to uphold the use of a sedative called midazolam as part of states’ lethal injection procedure. (Reuters)

But in the annals of botched execution attempts, the effort to inject a lethal potion into the body of Romell Broom at the Southern Ohio Correctional Facility on Sept. 15, 2009, surely set some sort of record, not only because it failed, but because it failed repeatedly for 95 minutes to two hours, with the man crying and screaming in pain.

Now, the Ohio Supreme Court is giving the state a do-over.

In June 2015, the Ohio Supreme Court heard arguments on whether the state can try again to execute a convicted killer who survived a 2009 botched execution. (Ohio Supreme Court)

It began at roughly 2 p.m. that afternoon, after the warden read the death warrant to the man convicted in the brutal rape, kidnapping and murder of 14-year old Tryna Middleton. It ended some 95 minutes later when the medical team, which included a phlebotomist, an assortment of nurses and technicians and a physician finally gave up.

And in the course of that time period, they jabbed, poked and stuck the man at least 18 times, twisting and turning catheters this way and that. They made holes in his arms, legs and elbows, his wrists, the backs of his hands and his ankles, inserting catheter needles repeatedly into “already swollen and bruised sites,” according to court documents. His veins bulged. One of them “blew.”

They took breaks, leaving the man on the gurney, and then came back to try again.

The medical team, according to court documents, “would withdraw the catheter partway and then reinsert it at a different angle, a procedure known as ‘fishing.'”

“Warden Phillip Kerns,” the court said, “saw the team make six or seven attempts on Broom’s veins during the same 10- to-15-minute period. According to Kerns, the team members did hit veins, but as soon as they started the saline drip, the vein would bulge, making it unusable.

“….By this time, Broom was in a great deal of pain from the puncture wounds, which made it difficult for him to move or stretch his arms. The second session commenced with three medical team members—9, 17, and 21—examining Broom’s arms and hands for possible injection sites,” according to the court’s opinion. “For the first time, they also began examining areas around and above his elbow as well as his legs. They also reused previous insertion sites, and as they continued inserting catheter needles into already swollen and bruised sites, Broom covered his eyes and began to cry from the pain. Director Voorhies remarked that he had never before seen an inmate cry during the process of venous access.”

And at one point, a physician came in and inserted a needle until “she struck bone,” even as another team member was “attempting to access a vein in Broom’s right ankle.”

“Broom screamed from the pain,” said the court. Blood ran down his arm.

Finally, they concluded that even if they managed to access a vein, “they were not confident the site would remain viable through the execution process.” They gave up. Then Ohio Gov. Ted Strickland issued a reprieve. Broom was the first person in the U.S. to be scheduled for execution and then have it postponed for failure to find a suitable vein.

Broom committed a horrendous crime, convicted in 1984 of the abduction, rape and murder murder of 14-year old Tryna Middleton in Cleveland. Middleton was walking home from a football game with two friends when she was kidnapped. He stabbed the girl 7 times in the chest. But his guilt was not the issue in the case decided by the Ohio Supreme Court Wednesday. Rather, it was whether, after what he went through, another attempt at executing him constituted cruel and unusual punishment or double jeopardy, in this case, multiple punishments for the same crime.

The court, in 4-3 opinion, said it wasn’t. And that the state could go ahead and try again.

“The state’s intention in carrying out the execution is not to cause unnecessary physical pain or psychological harm, and the pain and emotional trauma Broom already experienced do not equate with the type of torture prohibited” by the Eighth Amendment prohibition of cruel and unusual punishment.

Nor does a second execution attempt constitute a second punishment, said the court in an opinion written by Justice Judith Ann Lanzinger and joined by Chief Justice Maureen O’Connor and Justice Sharon L. Kennedy. “Because the lethal-injection drugs were never introduced into the IV lines, the execution was never commenced.”

In other words, this wasn’t an execution at all. Therefore, a second attempt would not be a second punishment.

The description of what happened that day “chills me to the core” wrote Justice William M. O’Neill, in a dissenting opinion, one of two filed in the case. “Any fair reading of the record of the first execution attempt shows that Broom was actually tortured the first time. Now we embark on the task of doing it again.

“…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.’ I can only imagine the apprehension Broom and his executioners must be feeling now as they prepare for and await a second attempt.”

Broom’s lawyers, Timothy F. Sweeney and S. Adele Shank, said in a statement that “Mr. Broom has been informed of the decision and remains in good spirits. He looks forward to pursuing the additional legal remedies available to him.”

In the meantime, no date has been set for a second attempt. The execution schedule for Ohio’s other death row inmates has been delayed as the state works to secure a supply of the necessary drug, CNN reported.

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