11/24/2009 05:12 am ET Updated May 25, 2011

Time for a Moratorium to Rethink Executions

I am running for the United States Senate because I believe that public service is for the purpose of helping our fellow citizens realize improvement in their lives. I believe that a government that treats its citizens with fairness, equality and respect, brings peace and justice to its citizens. In this framework, killing in retribution for killing has no place. It is in the community of sharing each other's burdens that we bridge the human chasm we cannot comprehend.

In 1984, my daughter, Laura, was born. I am proud of her and treasure the joy she gave me as a child, as a teenager, and now as one of my adult daughters.

In 1984, Romell Broom raped and murdered a 14-year-old East Cleveland girl, Tryna Middleton. My Laura was just months old. I never knew Tryna or her family. I have since been to her neighborhood. I cannot imagine the trauma of that situation--to her, her family, her friends or her community.

Broom, who had previously served time for raping a 12-year-old girl, was convicted of the abduction, rape and murder largely based on the testimony of two other girls who had been with Tryna when she was dragged away.

Last week, 25 years after the date of Tryna's death, 25 years after I wondered who my Laura would grow up to be, the State of Ohio attempted to execute Romell Broom. The Cleveland Plain Dealer reported on what transpired in the failed attempted execution and recorded reactions to it:

For more than two hours, the team attempted to insert two shunts into a vein of the compliant Broom, who tried several times to assist his executioners by shifting positions, rubbing his arm and pointing out possible usable veins.

At one point, Broom, 53, lay back on his bed, covered his face with his hands, and cried. Another time, while sitting up, he was seen grimacing as the execution team appeared to seek a vein around his ankles.

A reprieve at this stage of an execution has never happened since the death penalty was reinstated in 1999, said Terry Collins, director of the Ohio Department of Rehabilitation and Correction. He said he called the governor and asked for the reprieve after it became clear the execution team was having trouble. "I could tell my team was becoming somewhat frustrated," Collins said. The reprieve extended only until Sept. 22 [until a federal judge granted a stay of execution to stop the expiration of the reprieve and prevent the execution from happening during the pendency of the court proceeding].

The drama played out before the family of Tryna Middleton . . . Tryna's mother and father, Bessye and David Middleton, were there to witness the execution, as was an aunt. They sat in front of a glass window through which they were expecting to see Broom die.

Instead, he never made it out of his nearby cell, where two shunts were to be installed in veins. The shunts allow three drugs to enter the veins and sedate, paralyze and kill the inmate. The family and others watched the preparation on closed-circuit monitors mounted in the witness area. A camera filmed Broom and captured much of the difficulty the execution team had, as well as Broom's frustration. Broom requested no witnesses initially, but about an hour into the process asked for his attorney, Adele Shank, to be present.

A visibly upset Shank appeared in the witness room not knowing of Broom's request but out of concern for the length of time for the execution. "The chief justice and the governor have been notified of what's going on," Shank said after the execution team spent 90 minutes trying to insert the shunts.

Collins said the execution team was able to access several veins but they collapsed once saline solution was administered. He defended the execution team and said: "They continued to do a job that most wouldn't do or couldn't do." . . .

Shank, Broom's lawyer, said she is considering additional appeals. "We don't want to see a repeat of this ever," she said.

After Broom's execution was called off, the American Civil Liberties Union of Ohio asked state officials to immediately halt executions. "Ohio's execution system is fundamentally flawed. If the state is going to take a person's life, they must ensure that it is done as humanely as possible," ACLU Ohio counsel Carrie Davis said. "With three botched executions in as many years, it's clear that the state must stop and review the system entirely before another person is put to death."

I agree.

Like any mother, father, sister, brother, child, aunt, uncle, grandparent or citizen, I consider the crimes of which Broom was convicted heinous. I think of the years I have enjoyed with my daughter. I think of the years denied Bessye and David Middleton the companionship and love of their daughter Tryna, and it pains me.

When I served as a felony trial court judge in Columbus, Ohio, I learned firsthand that in rape and murder cases, no one is healed by the trial and punishment. No judge, no executioner--no one--can make the situation right, restore the loss, heal the wounds, bring the person back to the life or eradicate the fear and loss of stability. When "justice" is done it works to protect the community, satiate the hate, teach the lesson, prevent further loss, and only sometimes help heal the pain. When "justice" is execution, what does it accomplish? I'm not really sure; my psyche (and I believe America's psyche) never really felt healed on the execution of Timothy McVeigh.

So I simply ask, "Why do we do it?"

I answer, it is the law, and it is what we must follow until enough minds prevail to change it. I have always given the law its due because I honor the law, and I live in a society governed by the rule of law. But I cannot concede that our law requiring the execution of the convicted is a valuable tool of a just society under any particular or nebulous circumstance. The human condition is subject to the judgment of the creator, and only this can give me peace.

Thus, I cannot condone a system that perpetuates the pain from which sprang the punishment. A civilized society does not abide barbarism to ease its pain. It is not justice for me. Even when those who represent me and make the laws say that it is, I say that the people have said, "Then if this is justice, it must not perpetuate the cruelty from which it has sprung." It must neither torment its recipients nor its administrators.

In Ohio, after a 30-month review of the state's death penalty system, a team of Ohio legal experts, working under the auspices of the American Bar Association's Death Penalty Moratorium Implementation Project, issued a report on September 24, 2007 calling for a temporary halt to executions in Ohio in light of numerous problems the team uncovered.

The Ohio team rated the state's operation of the death penalty against 93 standards established by the ABA. The state gained a passing grade on four. In its report, the team said that Ohio's death penalty system is "flawed."

Specifically, capital punishment is not administered fairly or accurately due to inadequate procedures to protect defendants, including failure to require the preservation of biological evidence for as long as a defendant is on death row, failure to provide adequate legal services to all capital defendants and death row inmates, racial and geographic disparities in capital sentencing (i.e., those who kill whites are 3.8 times more likely to receive a death sentence than those who kill blacks, and there is a much greater chance of a death sentence in Hamilton County than in Franklin and Cuyahoga counties), and insufficient safeguards to protect the rights of capital defendants and death row inmates with mental disabilities.

As just one example of the team's many recommendations, in light of the fact that eyewitness misidentification and false confessions are the leading causes of false convictions, the report recommends the state require all law enforcement agencies to videotape interrogations in homicide cases and establish consistent lineup procedures, tapping into best practices across the country. The team urged the official with the power to stop executions, the Governor, to temporarily suspend them and to permit a "thorough review" of every aspect of capital punishment administration in the state. Ohio's Governor has so far not responded to the report or its recommendations.

The failed attempted execution of Romell Broom is the latest reason to end the death penalty in Ohio. Since 1976 Ohio has executed 32 people. That puts Ohio in the top 10 of states and it's a top 10 we must exit.

Ohio's protocol on applying the death penalty has changed several times since the punishment was reinstated. As recently reported in the New York Times, today a prison warden must shake and call the name of the condemned after anesthesia is injected, to establish that he or she is unconscious before the lethal drug cocktail kills him or her. Imagine having to do this for a job. Imagine this in a state that wants, that needs to progress. Not my Ohio.

Last week Broom never made it to the point where he was being shaken and shouted at. Nurses could not find a vein and in pain he actually tried to help one of his executioners with the needle. It doesn't matter whose fault that was (his for taking drugs or a failure of procedure). The point is, it didn't work.

And then there is the threshold question--was the convicted actually guilty? Are we sure that everyone killed by the state of Ohio was guilty? There is no reversal of the ultimate sentence.

DNA tests today are increasingly proving that not all convicted are guilty. And one mistake, the prospect of one innocent man or woman killed, is enough for me to stop the executions, until at least we can be sure that the person slated for death on display is actually guilty and can be terminated without cruel and unusual punishment.

No one can know the anguish of the Tryna Middleton and her family and friends and the damage to the hearts and minds of the community when an innocent young girl was killed so cruelly. No one can know the thousand deaths an offender who is finally clean, sober and of sound mind must experience each time he or she deals with the reason they are behind bars day in and day out, year after year, with no hope of undoing what they have caused. What is the ultimate retribution?

Without drawing moral judgments there are concrete reasons to end the death penalty.

Research has proven that the death penalty is not a deterrent and is more expensive to taxpayers than life in prison without parole. Maryland Governor Martin O'Malley recently said that capital homicide cases cost three times as much to try as homicide cases where execution is not sought.

In Ohio, I tried and sentenced a repeat killer to life in prison without parole under a new statute that allowed this sentence without the case being indicted by the prosecutor as a capital case. No special voir dire on death penalty was needed for the jury. No required two-attorney team had to be paid for by the State of Ohio. No lengthy trial involving a second phase of mitigation (to avoid imposition of the death penalty) was required. And no more potential, retriable error was at risk if the jury was not shielded from the fact that its recommendation of death, would be just that, a recommendation, that can, and often is, altered by a judge, an appellate court or by a last minute reprieve by a governor because the state's procedures are not effective enough to accomplish it quickly and with little or no pain.

Today about half of Americans oppose executions as a form of punishment for crime when life imprisonment without parole is available as an alternative. Canada's homicide rate has decreased 27 percent since the death penalty was abolished. There is no way to draw a correlation between the two but the fact stands.

While many countries continue to execute as a form of punishment, a movement is growing globally against the death penalty. As of June 2009 some 139 countries did not execute prisoners.

Of democracies as we recognize them, the U.S., South Korea and Japan are the only ones that legally kill their citizens. Many countries such as Italy refuse to extradite to the U.S. if the accused could face a sentence of death. In this case, the cause of justice is thwarted.

In the last two years the number of death sentences in the U.S. has been lower than any time since the punishment's reinstatement in 1976. It's a trend we should support.

The execution of Broom is to be rescheduled. Now is the time to rethink, first, how we kill, and then move on to the larger question of whether we even should kill in the first place.

We must begin to be the change we seek to improve individual lives one-by-one with temperance, patience and understanding. We must focus on the improvements that shape and build and strengthen individual lives in our communities. We must recognize and internalize that all are entitled to the basic rights as we the people have determined in our constitutions and entrusted to our courts to protect. And when one of us violates those rights, we must continue to abide by these principles in addressing it.

There is much discussion ahead as we dare to embrace the change that lay before us. With your help I can begin that discussion in the Senate along with many other thoughtful and diverse minds.

In the interim I call for an immediate moratorium on the death penalty to allow the dialog to begin once again--not just about how people are put to death, but whether they should be. Like 15 other states that have outlawed prisoner executions, I believe that answer is no. I ask that you join me.