AP Photo/File
A first attempt to execute Willie Francis,
depicted, did not work. A year later in
1947 Francis was executed by electric
chair, following a U.S. Supreme Court
ruling that said a second try was

Is the Death Penalty on Death Row in the U.S.?

October 07, 2009 05:30 PM
by James Sullivan
The botched execution of Romell Broom causes Ohio Gov. Ted Strickland to put executions on hold, the latest in a string of challenges to capital punishment.

An Execution Mired in Controversy Rekindles Long-Smoldering Capital Punishment Debate

On Sept. 15, Romell Broom, who was convicted of abducting, raping and murdering a 14-year-old girl in Cleveland in 1984, survived his execution when executioners failed for two hours to find a usable vein to administer a lethal injection. Observers described a scene during which Romell attempted to aid the executioners in locating a vein, and then broke into tears before Ohio Gov. Ted Strickland intervened to issue a one-week reprieve.

Broom’s lawyers have since claimed a second attempt to execute Broom would constitute cruel and unusual punishment and violate the Eighth Amendment to the U.S. Constitution. A hearing in the case has been scheduled for Nov. 30. On Monday, 43-year-old Lawrence Reynolds of Cleveland, a convicted murdered, was granted a stay of execution by the Sixth Circuit Court of Appeals as Ohio explores its lethal injection protocol.

The questions surrounding lethal injection in the Broom case recall the 2008 Supreme Court case of Baze v. Rees. In the case, two Kentucky death row inmates, Ralph Baze and Thomas Bowling, contended that the cocktail of three chemicals composing the injection had the potential to inflict unnecessary pain, and thus violated the Eighth Amendment. The Court advised Kentucky to halt its executions, but because the cocktail of drugs was a standard across many states—all states halted executions pending the outcome.

In a 7-2 ruling, the high court determined that the lethal injection used in Kentucky did not violate the Eighth Amendment’s ban on cruel and unusual punishment, as it did not pose “substantial risk of serious harm.” 

The Court acknowledged cases of painfully botched executions with the three-drug injection. But the majority feared that ruling in favor of Baze would open up the courts to complaints about capital-punishment sentencing.

Facing the “Demon of Error”

The halt to executions in Ohio is just the latest in a series of serious challenges to the administration of the death penalty by U.S. states.

The Court in the Kentucky case was widely splintered, though 7 of 9 concurred in the result. Justice Stevens, appointed by Ford, wrote that “the time for a dispassionate, impartial comparison of the enormous costs that death penalty litigation imposes on society with the benefits that it produces has surely arrived.” And that comparison is being undertaken by the states, one by one.

In March 2009, New Mexico officially abolished the death penalty. Gov. Bill Richardson, a former supporter of capital punishment, signed the bill into law and referenced evidence that the state had previously executed convicts who were innocent. New Mexico became the 15th state to formally abolish the death penalty, but only the second since 1976.

In December 2007, New Jersey abolished the death penalty, citing both moral and financial grounds, given the high cost of appeals and maintaining a prisoner on death row. At the time, The Washington Post reported that death penalty abolition had been debated by legislatures in Maryland, Montana, New Mexico, Nebraska and New Hampshire.

In 2004, the New York Court of Appeals declared the state’s capital punishment law unconstitutional, based on “deadlock” provisions in the law. The same court upheld its decision in a subsequent case in 2007. Although the defect could be remedied in a new law, the New York State legislature has not seriously debated a reenactment of a death penalty law.

On Jan. 11, 2003, Ill. Gov. George Ryan announced that he was commuting the sentences of 167 death row prisoners due to “the demon of error” in the capital punishment system.

The Republican governor’s decision was prompted by numerous cases of Illinois death row inmates being exonerated. Reports of widespread prosecutorial misconduct were published in a five-piece series in the Chicago Tribune.

Ryan’s decision came nine years after the famous dissent by Supreme Court Justice Harry Blackmun, in the 1994 case Callins v. Callins, where he wrote about what he perceived to be inherent flaws in the death penalty:
“Twenty years have passed since this court declared that the death penalty must be imposed fairly and with reasonable consistency or not at all, and despite the effort of the states and courts to devise legal formulas and procedural rules to meet this...challenge, the death penalty remains fraught with arbitrariness, discrimination...and mistake.”

Blackmun’s was met with a stinging retort from Justice Antonin Scalia that culminated with a visceral example of what he perceived to be capital punishment’s fairness:

“The death-by-injection which Justice Blackmun describes looks pretty desirable… next to some of the other cases currently before us, which Justice Blackmun did not select as the vehicle for his announcement that the death penalty is always unconstitutional, for example, the case of the 11-year-old girl raped by four men and then killed by stuffing her panties down her throat. How enviable a quiet death by lethal injection compared with that!”

Cameron Willingham Case, and Texas Death Row Drama

Texas is responsible for carrying out close to half of the death sentences in the U.S. each year. In a state long considered the bastion of capital punishment, high profile cases of innocent and potentially innocent men being sentenced to death—and in the case of Cameron Willingham, executed—have caused public sentiment to move toward abolishment.

Q&A: Capital Punishment

Broom’s execution does not stand alone in its failure. Below we answer popular questions about botched executions in the United States, and point readers toward resources for learning more about capital punishment.

Are botched executions a common occurrence in the United States?

There is no definitive list of botched executions in the U.S. The closest example is a piece compiled by sociology professor Michael Radelet, published by the Death Penalty Information Center, which lists and describes 42 cases of botched executions during the modern age of capital punishment in the U.S.

It begins with an account of the fiery, prolonged death by execution of Frank J. Coppola in Virginia on August 10, 1982, and details the method and circumstances surrounding other prominent cases, concluding with the Romell Broom case of Sept. 15, 2009.

The Death Penalty Information Center is a national nonprofit concerned with providing information and analysis related to capital punishment. Its site is a valuable source for facts, reports, articles and more.

How many people are executed annually in the United States?

In 2008, 37 people were executed in the U.S., down from 42 in 2007, and from a high of 98 in 1999. Texas was the largest contributor to the total, executing 18. All the executed prisoners were men, 17 being black, 20 white.

The Bureau of Justice Statistics provides comprehensive capital punishment statistics dating back to 1930.

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