Fordham Law prof Deborah Denno is perhaps the foremost legal scholar on lethal injection. Her take on today's events are especially relevant because of her scholarship on a botched Louisiana execution in 1946 and its legal legacy. Here's her take:
On a federal (and state) level Ohio’s argument for attempting another execution of Mr. Broom would rely on Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947). In Resweber the Court upheld under the Eighth Amendment the execution of Willie Francis a black youth whose first execution attempt by electrocution miserably failed. Yet the precedential aspects of Resweber are critical to consider in context.
Willie Francis was only fifteen at the time he allegedly murdered a white pharmacist in small-town
. As the facts of Willie’s alleged crime and first attempted execution unfold, some modern lawyers may be astonished that Willie was ever destined for the death penalty. While Willie confessed to Andrew’s murder and, from all told, never recanted, those acts were viewed far more definitively in 1947 St. Martinville, Louisiana than they would ever be today. In addition, the Court decided Resweber fifteen years before it held that the Eighth Amendment’s Cruel and Unusual Punishment Clause applied to the states (in Robinson v. California, 370 U.S. 660, 666-67 (1962)). Attempting to operate under such constitutional constraints, the Louisiana Resweber Courtbased its conclusion about Willie Francis on a guideline developed prior to the incorporation of the Eighth Amendment into the Fourteenth Amendment’s Due Process Clause. As a result, the Court only hastily assumed the Eighth Amendment’s applicability – primarily to ensure that the Court’s plurality opinion received sufficient votes. Even more significant in retrospect is the Court’s 2005 holding in Roper v. Simmons (543 551, 578 (2005)) that offenders can no longer be executed for crimes committed when they were juveniles under age eighteen. Because of Francis’s youth at the time of the murder, he could not be executed today. U.S.
In sum, the passage of six decades has heralded these developments and other massive changes in criminal law and procedure that cast a troubling light on the use of Resweber as modern guidance. Add on to that the fact that Mr. Broom is facing execution by another method of execution and under even more egregious circumstances (
’s repeated history of botched lethal injections), Resweber has even less reliability. Ohio
Her chapter, "When Willie Francis Died: The 'Disturbing' Story Behind One of the Eighth Amendment’s Most Enduring Standards of Risk," is part of the 2009 Foundation Press book, Death Penalty Stories, edited by John Blume & Jordan M. Steiker, and is noted here.
Thanks to Debby, you can read that chapter here.
Earlier coverage of this bizarre episode begins here.