Death Row: The Cruel and Unusual Wait

On Tuesday, Sep. 15, the state of Ohio was set to execute Rommell Broom, a man convicted of raping and murdering a 14-year-old girl 25 years ago. After two hours of poking and prodding, however, the technicians were unable to find a suitable vein where they could administer the lethal injection. Regardless of the cause, the end result was that the execution attempt failed and Broom walked out of the chamber under his own power, still breathing the same oxygen as the rest of us, his execution postponed by one week.

Unsurprisingly, Broom’s attorneys immediately responded seeking to cancel or at least postpone this execution. One of the grounds they appealed on was that executing Rommell Broom seven days after the botched execution would constitute cruel and unusual punishment. They contended that one week was simply not enough time to recover from both the physical and emotional trauma of a failed execution attempt. Broom’s execution has since been delayed pending a series of proceedings.

The idea that waiting seven days to die could constitute cruel and unusual punishment underscores a much larger problem with the United States imposition of the death penalty. Rommell Broom was sentenced to die 25 years ago. The United States’ 3,300 death row inmates can now expect to wait an average of 12 years from the day of their sentencing to death by lethal injection or electric chair, a doubling of the time gap in the mid-1980s, according to the U.S. Bureau of Justice. The psychological toll and physical deterioration of death row inmates has been well chronicled, with at least two Supreme Court Justices questioning the constitutionality of the long delays between conviction and the carrying out of sentences.

Delaying executions this long leads to greater philosophical questions. If we sentence someone to death at the age of 20 and execute them at the age of 45, are we even punishing the same person? The long delays are mainly due to mandatory appeals introduced after capital punishment was reinstated by the Supreme Court in 1976 after a four-year suspension. These reforms have led to lengthier appeals — the flipside, however, is even more frightening.

If we were to cut down the mandatory appeal process in order to speed up the execution of inmates, we would undoubtedly risk executing innocent individuals. Even with our current system in place this is a terrifying concern. In 2004, Todd Willingham was executed by the state of Texas for starting a fire that killed his three daughters. In a report sent in August of this year to the Texas Forensic Science Commission, however, an expert fire investigator concluded, as did two other experts in 2004 and 2006, that the blaze was accidental, not arson. This finding may not make life any easier for death penalty opponents, however; in a recent ruling, Supreme Court Justice Antonin Scalia joined by Justice Clarence Thomas wrote in a dissenting opinion: “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.”

The cases of Rommell Broom and Todd Willingham are cause for serious concern even amongst ardent supporters of the death penalty. In 1972 the Supreme Court decided Furman v. Georgia, holding the system states used to apply the death penalty to be cruel and unusual punishment due to the random and arbitrary manner in which death sentences were handed down. Since that time the death penalty has roared back, with states slowly developing new rules designed to eliminate the arbitrary nature in which individual is handed a death sentence. This has resulted in “Frankenstein” statutes that have done little to solve the real problems. We currently have over 3,000 individuals on death row. In 2008 we executed 37; this year we have executed 38. Long delays have certainly resulted in more arbitrariness as to which inmates actually succumb to the death penalty. Since the reinstatement of the death penalty in 1976, we have continued to reform and fight the simple fact that the death penalty is an imperfect system with permanent consequences. The execution of innocent men, and the execution of individuals who have had 20 years to change, make it clear that the United States should join the rest of the Western world in rejection of this arbitrary practice.

Richard Elkind, a third-year law student at Cornell, is the executive editor of the Journal of Law and Public Policy. Barely Legal, a column featuring a rotating cast of law students, appears alternate Fridays this semester. He may be reached at rbe28@cornell.edu [5].