Earlier this month, an Ohio inmate appealed a state Supreme Court decision holding that a second execution attempt would not violate the inmate’s constitutional rights.
Broom, a convicted murderer, was sentenced to death for his crimes. In 2009, an attempt to execute him was unsuccessful after 18 stabs at finding a viable vein over a span of approximately two hours ultimately failed. Broom argued all the way up to the Ohio Supreme Court that a second attempt to execute him would amount to cruel and unusual punishment and violate double jeopardy. The Ohio Supreme Court rejected Broom’s arguments in a split decision.
Broom has appealed this ruling to the Supreme Court of the United States. The last time the High Court addressed a death penalty case was in 2015 with its Glossip v. Gross decision. In that case, the Court upheld a method of execution 5-4 over the challenge of several prisoners. The late Justice Scalia was in the majority.
We know from Glossip that at least four Justices have some concerns about the death penalty, with two of them calling for a re-examination of its constitutionality altogether. As it takes the vote of only four Justices for the Court to hear a case, it is likely that certiorari will be granted on Broom’s appeal. If the case is heard before Justice Scalia’s vacancy is filled, and the Justices vote as they did in Glossip, it will be 4-4, and the Ohio Supreme Court decision will stand.
However, filling the SCOTUS vacancy is proving to be a hot issue in this year’s presidential election. This case may go either way, depending on the outcome and who is appointed by our next president to fill Justice Scalia’s seat. Thus, it could, interestingly, be decided at the polls on November 8th – yet another reason to get out and vote!