Retired Federal Appeals Court Judge H. Lee Sarokin recently offered a harsh critique of the death penalty, especially challenging the botched execution attempt of Romell Broom in Ohio in September. Citing morality, arbitrariness, and the dim prospects of closure for the murder victims’ families, Judge Sarokin called the imposition of the death penalty an erratic and flawed process that should not be permitted to continue. “The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict.“

Regarding Ohio’s lethal injection process, Judge Sarokin said it would be unconstitutional to subject the defendant to a second execution attempt: “It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn’t cruel and unusual punishment, I do not know what is!“ He continued, “Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?“ Read the entire article below.

Oct. 5, 2009
Does a Botched Execution Constitute Double Jeopardy?

When I hear that a man has raped and murdered a young child, terrorists have killed innocent women and children, a store keeper dies during a petty robbery, a man has kidnapped and repeatedly raped a teenage girl or a political leader has committed mass genocide, I want the perpetrators executed——killed——dead! But, nonetheless, I am opposed to the death penalty. Its imposition has become too erratic and flawed to be permitted to continue.

First, there is the obvious moral opposition to the death penalty. Despite our personal desire for vengeance and punishment, it should not be the function or policy of the government to impose the ultimate penalty. The United States is one of the last countries among those we respect to retain the death penalty. However, I recognize that others feel differently and that debate has been fully aired over the years, but there are additional reasons for ending the death penalty.

The system is too fraught with variables to survive. Whether or not one receives the death penalty depends upon the discretion of the prosecutor who initiates the proceeding, the competence of counsel who represents the defendant, the race of the victim, the race of the defendant, the make-up of the jury, the attitude of the judge, and the attitude and make-up of the appellate courts that review the verdict. The costs and time spent are exorbitant. The appeals are endless, and in many instances, the verdict is never carried out despite exhaustion of the system. Closure is postponed and sometimes never realized. Rather than satisfy the families of the victims, the unending system frequently frustrates and angers them. The innocent have been executed.

And finally, we confront the flaws in the execution itself. The methods are under challenge as being cruel and unusual punishment in violation of the Constitution. Botched executions are widely reported, such as the recent attempt in Ohio to execute Romell Broom. 18 attempts were made to inject a needle in Mr. Broom. Mr. Broom was returned to death row after these failed attempts. It is impossible to imagine what it must be like to know that you are going to be put to death, have numerous efforts fail, and then have to face the prospect again at a later date! If that isn’t cruel and unusual punishment, I do not know what is!

Double jeopardy prohibits a person from being tried twice for the same crime. Should it not protect a person from being subjected to execution twice for the same crime?

(H. Lee Sarokin, Huffington Post, Oct. 5, 2009). See Lethal Injections and the case of Romell Broom. Also New Voices.

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