Cruel and Unusual

The world is full of little ironies. Last week, for example, I was in the Netherlands, discussing round the breakfast table the latest developments in euthanasia in Holland and Belgium (now the world leader in the field), and today I read in my newspaper the difficulties that the state of Ohio has in executing one Romell Broom.

My breakfast companions disagreed about euthanasia, with some in favor and some against the practice. The various arguments have been made so often before that it was not our fault if we had nothing much new to say on the subject. I suggested that we consider whether confining euthanasia to the dying was illegitimate discrimination in their favor. After all, why should the dying have all the best deaths? But perhaps one should not joke, bearing in mind that satire nowadays is prophecy.

What none of us, pro or con, doubted was that people could be caused to die—in short, killed—painlessly. There is a clinic in Switzerland called Dignitas that offers its clients (patients?) an easeful, albeit self-administered, death. There seem to have been few if any complaints, at least that have reached the public at large, that it does not deliver on its promise.

Why, then, should the state of Ohio have had so much difficulty in executing a man convicted of murder and rape, when Dignitas so easily gives its customers what they want? In the report in my newspaper, I read the following remarkable sentence recounting how the first attempt to execute Broom in 2009 had failed:

An hour into the execution, the Department of Rehabilitation and Correction recruited a part-time prison doctor with no experience or training with executions to try—again,  unsuccessfully—to find a vein.

During that first hour, there had been 18 attempts to find a vein into which to inject the fatal concoction. Only then was a doctor called in, and he had no training in executions. Perhaps the curricula of medical schools should be revised to ensure that this situation does not arise again.

The Ohio Supreme Court recently ruled that the state of Ohio should be permitted to try again. The court ruled that a second attempt at executing the condemned man would breach neither the rule against double jeopardy nor the U.S. Constitution’s prohibition of cruel and unusual punishments.

Broom’s crime, assuming that it was he who committed it (which he denies), was a terrible one, namely abducting, raping, and murdering a 14-year-old girl. No one could call the penalty itself unjust for the commission of such a crime, whatever else might be said against capital punishment or whatever other reason there might be for never imposing it. Moreover, he had committed rape before, as well as robbery. Even before his capital crime he was no ornament to society.

Whatever the finer legal arguments, however, it seems to me cruel to attempt a second execution six years after the first such attempt—which itself came 25 years after sentencing. Not only were the executioners incompetent at the first attempt, then, but the entire justice system of Ohio also. For to carry out the execution of a man 25 or 32 years after his crime bespeaks not scrupulousness but gross incompetence and sloth, leading in effect if not in intention to the slow torture of a man. It was not as if Broom were a war criminal who had been hiding out and living as a free man for decades. He was in prison all that time. And if holding a man under sentence of death for 32 years is not cruel and unusual, the words must have changed meaning.

Execution by injection was instituted because other commonly employed means—the electric chair, firing squad, hanging—were thought to entail unacceptable levels of physical pain for a civilized society to inflict nowadays. Death by injection was thought a fool-proof way to a painless, if unpleasant, execution. There are two possible conclusions from this: either the agents of the state are incompetent, or euthanasia, in the sense of an easeful death, cannot in fact be guaranteed.

I am inclined to the former interpretation. But in my more paranoid moments, I sometimes wonder whether the incompetence of state agents is more than just incompetence and tips over into sabotage.

For example, in Britain, the government has tried to reduce the costs of sickness benefits by removing them from fraudulent claimants, of whom there are scores, if not hundreds, of thousands. But the bureaucracy seems to have sabotaged this effort against waste, fraud, and abuse by willfully cancelling the benefits of people who clearly and obviously deserve them, and who would suffer great hardship if they were discontinued.

These cases are taken up, of course, by a media that dislikes any attempt at reform and that generally favors big government and the population of dependents that justifies it. Better a hundred guilty should go free than one innocent man be condemned; and better a hundred fraudulent cases should stay on the rolls than one deserving case be taken off them. Even making all due allowances for the natural stupidity of British bureaucrats, some of the cases in which benefits have been withdrawn have been so grotesquely unfair that only deliberate sabotage of the whole policy of retrenchment could explain them.

This causes me to wonder whether the delay in executing Romell Broom and the failure of the first attempt were not the work of opponents of the death penalty. I count myself among the opponents, but if I found myself working in a situation in which it was supposed to be carried out, I would remove myself from that work rather than continue to be paid for it while acting to sabotage it.

I have known personally only one man who was executed, the Nigerian writer Ken Saro-Wiwa. He wrote a brilliant and moving antiwar novel about the Nigerian civil war called Sozaboy (1985). A military government accused him, for the most transparently political reasons, of murder, and subsequently hanged him. The hangman was said to have taken five attempts. “In this country,” Saro-Wiwa reportedly said between the attempts, “they can’t even hang a man properly.” Ohio, it seems, is not far behind—or is it ahead?