March 16, 2016; ABC News (Associated Press)

Romell Broom’s execution has been put on hold since 2009, after executioners could not find a vein to intravenously administer the lethal injection drugs. Seven years later, on Wednesday, March 16th, a divided Ohio Supreme Court voted 4 to 3 to reschedule Broom’s execution despite pleas from his attorneys that it would be cruel and unusual punishment to re-execute Broom as well as violate the double jeopardy prohibition in the Constitution.

The ruling comes after the U.S. Supreme Court’s decision in Glossip v. Gross last year upholding the lethal injection protocol, specifically the use of the controversial sedative midazolam which, in botched executions in Oklahoma and Arizona, left inmates dying for hours and some writhing in pain. When Ohio executed Dennis B. McGuire in 2014 using the same drug, several witnesses said they saw him gasping and choking.

In Broom’s case, however, the lethal injection drug had not been administered at all. Rather, officials tried for two hours to find a viable vein, pricking him 18 times. In an affidavit days later, Broom said, “The pain made me cry.” Following the botched execution, Gov. Ted Strickland granted Broom a temporary reprieve.

Broom was sentenced to death for the abduction, rape, and murder of a 14-year old girl walking home alone after a football game, according to ABC News.

In a brief to the court, Broom’s lawyer’s wrote, “Romell Broom has a constitutional right not to be subjected to more than one execution attempt under the circumstances present in this case, including the fact that significant psychological and physical pain have already been inflicted on him in a first attempt.” Double jeopardy, which may extend to the punishment an inmate can be sentenced to, would therefore be violated if Broom were forced to re-experience the trauma of another execution, according to his attorneys.

Prosecutors countered (and the Court agreed) that double jeopardy did not apply in this case for the very reason that drugs had not been administered. The execution never really began because the drugs did not enter his body and his punishment was not implemented.

“Because Broom’s life was never at risk since the drugs were not introduced, and because the state is committed to carrying out executions in a constitutional manner, we do not believe that it would shock the public’s conscience to allow the state to carry out Broom’s execution,” wrote Lanzinger for the majority opinion.

However, anti-death penalty advocacy group Ohioans to Stop Executions criticized the ruling, saying the 18 times Broom’s body had been pierced with a needle signaled the start of an execution and officially began the implementation of Broom’s death sentence. A petition set up by the group to commute Broom’s sentence to life in prison includes a photo of Broom and all the places Broom was pricked by a needle during the course of the execution.

Moreover, the dissent, written by Justice Judi French, remarked the state hadn’t explained why the execution was botched in the first place. “If the state cannot explain why the Broom execution went wrong, then the state cannot guarantee that the outcome will be different next time,” wrote French in the dissent.

At the time of Broom’s botched execution, Kathleen Soltis, the chair of the Cleveland Coalition Against the Death Penalty, said, “The sentence is death, not torture plus death.”

There is precedent for continuing a botched execution. 1947 was the last time an execution was halted, when the electric chair being used malfunctioned. The Supreme Court ruled in another close 5 to 4 decision to allowed the second execution—then, too, rejecting the argument that it would violate double jeopardy. At the time, the Court ruled there had not been a violation of rights or due process because “an accident, with no suggestion of malevolence, prevents the consummation of a sentence.”

Ohio uses the same three-drug cocktail that was upheld by the Supreme Court last summer, and it’s possible the same drug will be used. A new execution date has not been set.—Shafaq Hasan