It’s déjà vu all over again. Romell Broom, convicted of murdering 14 year-old Tryna Middleton in 1984, is appealing his death warrant. Because he was already subjected to one botched attempt at lethal injection, his lawyers argue that a second attempt would violate the Eighth Amendment’s prohibition against cruel and unusual punishment.
On December 8, 2009, Kenneth Biros was executed with a new drug, used for the first time in Ohio. Prior to his execution, his lawyers argued unsuccessfully before the U.S. 6th Circuit Court of Appeals that the new protocol violated the Eighth Amendment.
A year ago, convicted killer Richard W. Cooey III asked that he be spared the death penalty, based on the Eighth Amendment. Cooey claimed that his obesity and medications would likely interfere with lethal injection and cause him excruciating pain, violating his Eighth Amendment rights. His appeal was denied, and he was executed in October 2008.
Besides making similar legal arguments, these men share another similarity. Broom has been on death row since 1985, and Biros and Cooey had been on death row since 1991 and 1986, respectively. Such long waits on death row are typical. Capital sentences often result in 15-20 years of post-trial proceedings, where every aspect of the arrest and subsequent trial is examined to ensure that the process was fair.
So, why not get rid of the post-trial proceedings? A tempting thought, but the constitutional requirement of due process precludes us from doing so. So, if it takes 15-20 years to execute someone, and we cannot dispense (thank goodness) with due process, why not try something more efficient that brings closure faster?
What if we dispense with capital punishment, and Broom had been awarded a life sentence without parole? Most obviously, he wouldn’t be in the news today and would be confined to prison—no post-trial proceedings or last minute requests for a stay of execution. Save for the cost of boarding him, he would no longer be an issue.
Had we sentenced Broom to life imprisonment, we would probably have realized a cost savings. Studies show that capital trials consume more time and expense than other murder cases, and for good reason; much more is at stake. Without question, the post-trial proceedings associated with capital cases consume enormous time and expense. Remember, most murderers are indigent, which means the government covers both the cost of the prosecution and the defense. Let’s not forget the costs associated with judges and court staff.
At its core, capital punishment is about ridding society of a menace. In primitive times, those deemed no longer worthy of existing with the tribe were banished. Capital punishment is a modern, but more violent, version of banishment, but the constraints of due process make it far less efficient.
After his trial in 1985, Broom’s place in our psyche should have ended just a few years later, when the regular appeals that exist with non-capital cases had run their course. Tryna Middleton’s family would have had finality, the state could have closed its books, and there would have been no more news about him.
Instead, Broom’s place in society has continued through legal proceedings for 24 years. He was 29 when admitted to death row and is now 53. Instead of being incarcerated and forgotten, he has again invaded our consciousness, and the Middleton family is reminded once more of the horror it endured 25 years ago. Ironically, Broom has not been banished but has been allowed to remain in the public view.
U.S. District Judge Gregory L. Frost has the unenviable task of deciding whether a second attempt to execute Broom is unconstitutional, unenviable because there is little to no precedent for the issue. Regardless of how Frost decides the issue, an appeal is almost certain, consuming more time and more expense.
The death penalty has placed us in a squirrel cage, where we waste time and money on constitutional issues that should never consume so much of either. Our desire to execute is at odds with our Constitution. Something has got to give, and it won’t be the Constitution.
The smart move is to abolish capital punishment in favor of life sentences without parole, but we just can’t seem to get beyond our need to award the ultimate punishment. The irony is that we’re really punishing ourselves.
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