| Answering the question of what an execution is, when it begins, and what it means to be present at such an event has, over the course of recent American history, turned out to be enormously difficult for judges. That difficulty has caused real problems when they have to determine the scope and limits of the constitutional guarantees that regulate what the government can do when it puts someone to death. |
| That’s why the January 16 ruling of Tennessee Chancery Court Judge I’ Ashea Myles is so groundbreaking. She offered a clear and persuasive answer to questions that long plagued the jurisprudence of capital punishment. |
| An execution, she ruled, is part of the judicial process, not a separate procedure governed by the needs of the correctional officials charged with carrying it out. Myles also found that an execution is more than the moment someone is put to death, and that it includes all the preparatory steps that lead up to that moment. |
| Before looking more closely at Myles’s opinion, let me say what her ruling means in the world of capital punishment. To put it simply, it opens a new way of thinking about how the Eighth Amendment’s prohibition of cruel and unusual punishment and the Fifth Amendment protection against being punished twice for the same crime might come into play in death cases. |
| To this point, courts have generally applied these amendments to regulate the amount of pain an execution method, including lethal injection, can impose or to prevent the state from carrying out what one Supreme Court justice called “death by installments.” |
| But many of America’s painful, botched lethal injection executions go wrong long before the drugs begin to flow. And if those failures are not regarded as part of the punishments they impose, the government has a free hand to inflict as much pain as it wants for as long as it wants and to try again if the execution is stopped before the death of the condemned person. |
| Lest anyone think this is merely hypothetical, consider the 2009 case of Romell Broom. |
| Broom became the first person whose lethal injection was stopped because the execution team could not insert the IV needed to carry the deadly drugs into a vein. This happened only after Broom had endured nearly two and a half hours of invasive and painful medical procedures, including being subjected to a painful procedure known as “fishing,” where a needle “is moved around under the skin in an attempt to find a vein. “ |
| After being stuck with needles 18 times,” Mother Jones’s Stephanie Mencimer reports, “Broom was crying from the pain and emotional trauma.” His lawyer “contacted state prosecutors, who alerted then-Gov. Ted Strickland about the situation, and the governor halted the execution.” |
| When the State of Ohio announced its intention to try again to put him to death, Broom sued, claiming, among other things, that a second execution attempt would violate the Double Jeopardy Clause. He argued that his execution “began with the reading of the death warrant or with the first insertion of a needle. Once the process began, Broom stated he had a reasonable expectation that his death would take place on the date of his execution, and that subjecting him to it again would be a forbidden second punishment.” |
| The state supreme court disagreed. |
| The majority cited a statute which said that “a death sentence shall be executed by causing the application to the person, upon whom the sentence was imposed, of a lethal injection of a drug or combination of drugs.” In the court’s view, what happened to Broom was not punishment and “did not by itself place the prisoner at risk of death.” |
| An “execution attempt,” the court said, “does not begin until lethal force or measure is applied.” In the case of lethal injection, “the execution commences when the lethal drug enters the IV line. 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.” |
| Romell Broom passed away before Ohio could try to execute him again. But the Ohio Supreme Court’s decision lives on and has been cited by other courts that have been asked to stop a second. |
| From 2009 until now, the executions of five other people have been stopped when the execution team could not find a usable vein. No doubt there will be others. |
| In the future, death-row inmates will be able to draw on Judge Myles’s decision as they seek to persuade courts that they should not be subject to a second execution attempt. However, that was not the context in which she talked about what an execution is and when it begins. |
| Her decision came in a case brought by news organizations, which claimed that they were entitled to observe “full lethal injection and execution electrocution attempts in the State,” not just the moments when the condemned person dies. |
| The organizations argued that Tennessee’s current execution protocol “arbitrarily limits access to critical portions of the execution proceeding.” Their list of those steps included: |
the preparation of the syringes for use in the execution; entry of the condemned into the execution chamber; the preparation of the condemned in the execution chamber; insertion of intravenous lines into the condemned; TDOC’s administration of syringes of lethal injection drugs; the physician examination and pronouncement of death; any of the process after the blinds are closed for the physician examination; or any immediate post-execution procedures in the execution chamber.
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| Judge Myles agreed that the press has the right to observe the entire execution, from start to finish. |
| She cited a Tennessee statute that guaranteed that members of the media could be “present at the carrying out of” death sentences. Miles noted that in providing for such access, “the legislature did not differentiate between the events that the official witnesses were to be present for and those which were to be shrouded by a veil of secrecy.” |
| “They,” Myles continued, “granted the official witnesses the statutory right to be present, not for a portion of the carrying out of the death sentence but for the entire event.” And in language that seems applicable to a Broom-like situation, she insisted that executions include more than the time when a condemned person dies. |
| She found that the “constriction of the right to be present in the fullest sense of the word by diminishing that right to a mere 10 to 15 minutes… is a limitation on the official witness’s right to be present at the execution event.” |
| To be sure, Myles did not say anything about how her understanding of what is involved in an execution might work in a case involving the Fifth or Eighth Amendments. But, in my view, it offers a very different understanding of what constitutes an execution from what the Ohio Supreme Court said in the Broom case. |
| Myles observed that “Executions are creatures unto themselves,” and they “represent the final and most consequential stage of the criminal justice process.” That is why it is so important to get it right when we talk about what an execution is and when it begins. |
| Judge Myles got it right. Other judges should follow her lead. |
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