On Tuesday, the state of Ohio attempted to carry out a sentence of execution against Rommell Brown, convicted of raping and murdering a 14-year-old girl 25 years ago. The attempt failed. After two hours, the executioners gave up attempting to find a useable vein through which to administer the lethal injection. (More details here.) As a result, Brown was granted a one-week reprieve by Ohio Governor Ted Strickland. What will happen now?
In 2008, in Baze v. Rees the U.S. Supreme Court held that as practiced by Kentucky, the standard "cocktail" used for lethal injections is not unconstitutional. That ruling might be thought to bar any further objections by Brown, except that Baze is best read to reject the challenge to lethal injection as it was practiced in Kentucky. The case does not stand for the proposition that any version of lethal injection is per se constitutional, nor does it foreclose the argument that lethal injection would be cruel and unusual punishment as applied to particular inmates.
Brown, it would seem, is now well positioned to make an as-applied challenge, especially because the factual basis for his claim--the fact that he does not appear to have useable veins for a lethal injection--only became available on Tuesday.
But there would be an ironic twist to any such challenge. Ohio law makes lethal injection the sole method of execution, except that Ohio may use an alternative method if:
1) Lethal injection is found unconstitutional;
2) The Ohio legislature prescribes an alternative method that is itself constitutional.
Thus, were Brown to succeed in having Ohio's system of lethal injection declared unconstitutional as applied to him, that very success would trigger the legal provision permitting his execution by a different method, should the legislature act. The irony is more apparent than real, however. The Ohio legislature could, after all, simply amend the statute so as to make a ruling of unconstitutionality unnecessary as a trigger for an alternative method (such as hanging, firing squad or Ohio's previous preferred method, the electric chair). Presumably doing so would not violate double jeopardy or the ex post facto prohibition, and it is at least a little bit odd that the Ohio legislature did not prescribe any such alternatives as a fallback when it adopted the current version of its lethal injection law in 2001.
Until the legislature acts, however, if Ohio wants to execute Brown, it has to try lethal injection, and there is no reason to think it will go any better the second (or third or fourth) time. With or without a judicial ruling, any such attempt would be cruel and unusual punishment. Thus, the Governor ought at the very least to stay Brown's execution until the Ohio legislature authorizes an alternative, and constitutional method of execution.
Posted by Mike Dorf