From Andrew Cohen, in The Atlantic
In killing Clayton Lockett this way, state officials thus elevated a convicted murderer to a status he surely did not deserve in life or would have ever obtained had his execution been preceded by acceptable levels of due process. Lockett was not an innocent man who had been framed by the police, ignored by his attorney, or railroaded by a bigoted judge or jury. If we are to have a death penalty in this country, he was a suitable candidate. But in its zeal to kill him, in its frustration about the delay in meting out punishment, Oklahoma turned him into a symbol.
A symbol of what? Many things. What happened last night was the inevitable result of a breakdown in government in Oklahoma, where frustration at the continuing delay in the resolution of Lockett’s case blinded state officials to the basic requirements of due process. From these officials’ perspectives, the fight over this man’s fate seemed to be personal, rather than a dispassionate exercise in bureaucracy.
This has exposed yet another instance where the “machinery of death,” to use Justice Harry Blackmun’s immortal phrase, is incapable of running with the sort of precision necessary to work a capital regime. What happened to Clayton Lockett surely won’t convince lawmakers in Oklahoma or Texas or Missouri or Louisiana or Alabama to end their experiment with the death penalty. But if what happened last night in Oklahoma doesn’t cause our nation’s judges to stop the cycle of secrecy over lethal injections, it will be a scandal.
Indeed, Lockett now is a symbol of feckless judicial review by the federal courts, including the United States Supreme Court. The justices in Washington have had countless opportunities in the past year to stop the madness caused by the current generation of lethal-injection secrecy. They long ago could have and should have accepted one of those cases for review to establish standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners. What happened to Clayton Lockett last night is on them, too.
It’s on Justice Antonin Scalia, the man of great faith, who just a few months ago, in oral argument in Hall v. Florida, lamented the slow pace of executions in this country and blamed his colleagues for the delay. It’s on the state judges in Oklahoma, and not just those on the Court of Criminal Appeals, who consistently refused to vet the new legal issues raised by the use of these new drugs. And it’s on the state Supreme Court, which backed down from the stay it had issued.
But what of the family members of Lockett’s long-ago victim, Stephanie Neiman? They issued a sad, earnest statement last night that was lost in the wall of coverage about the way Lockett died. Not only can they never have “closure,” but now they are stuck with months or even years more legal conflict over how state officials chose to kill their daughter’s murderer.
As news of the botched execution spread, there were two familiar and predictable threads. There were those who were shocked that such an avoidable act would take place in their name. And there were those who were glad Lockett is dead and wondered what the fuss was about. Those in the first category saw his death as another sign of the immorality of capital punishment. Those in the latter group saw it as a measure of justice. He still didn’t suffer as much as his victims, one commentator after another made a point of telling me.
This latter sentiment may be a form of “justice” but it surely is not one of law. One can support the death penalty in general, and in the case of Clayton Lockett, and still be morally repulsed by the idea of torturing a man to death under color of law in circumstances in which the torturers knew or should have known their conduct would violate the Constitution. An eye-for-an-eye does not raise anyone up; it just brings us down to the level of the condemned.
The Supreme Court is partly to blame for this
From Debra J. Saunders, at TownHall.com
News reports this week were filled with lamentations from death penalty opponents about the messy and unnecessarily painful execution of Clayton Lockett. As Andrew Cohen wrote in The Atlantic, Oklahoma corrections officials “were using an untested mix of lethal drugs, never previously used in that dosage combination, obtained through secret means….”
Missing from that report — and most others — was the reason states are using new drug mixes obtained through unconventional means: Since the U.S. Supreme Court upheld Kentucky’s three-drug lethal injection protocol as constitutional in 2008, death penalty opponents have used every trick in the book to make the drugs disappear.
Of course, before the big bench’s 7-2 ruling, lawyers for death row inmates had argued that the three-drug protocol violated convicts’ constitutional protection against “cruel and unusual punishment.” The remote possibility — a 0.001 percent chance — that an inmate might suffer unduly prompted federal Judge Jeremy Fogel to halt California’s three-drug executions in 2006; despite the Supreme Court ruling, there hasn’t been one since.
After the big bench affirmed the three-drug protocol, activists went after suppliers. The European Union threatened to ban the export of sodium thiopental to the United States. European producers stopped making it. U.S. manufacturer Hospira also stopped making the drug.
That’s when states started experimenting and scrounging for “untested” drugs.
When an investigation of Lockett’s gruesome end is complete, it may find that the drug cocktail had little to do with Lockett’s unintended pain. The problem could have been intravenous needles that were damaged or poorly inserted.
Kent Scheidegger of the pro-death-penalty Criminal Justice Legal Foundation blogged Wednesday that because lethal injection requires the involvement of medical professionals, it “was a mistake from the beginning. We should have kept the gas chamber and merely used a different gas. Carbon monoxide, for example, is painless.” He’s right.
I should note that Lockett had it easier than Stephanie Neiman, the innocent 19-year-old victim whom he and his friends beat and bound with duct tape in 1999. Lockett shot her twice before he ordered an accomplice to bury her alive in a shallow grave.
White House spokesman Jay Carney called the Oklahoma execution inhuman. He did not mention the Obama administration’s role in pressuring states to surrender drugs found to be constitutional by the U.S. Supreme Court. In 2011, the Obama Department of Justice actually seized Georgia’s supply of sodium thiopental because the drug, among other problems, did not have FDA approval. Really.
“If the White House is upset,” Scheidegger wondered, “why don’t they do something about the supply problem? Everyone knows that pentobarbital, the single-drug method, works just fine.” Maybe President Obama should sign an executive order.
An honest reappraisal is necessary
From Jeremy Manier, in the Chicago Tribune
Lockett’s botched execution paralleled the arc of America’s modern experience with the death penalty. First came the quasi-scientific quest for a clean death, then squeamishness at the messy reality and a hopeless dash to bring it under control again. We are unwilling to give up capital punishment, yet unable to stomach its consequences.
Even if the death penalty stays, maybe it’s time to ditch the notion that technology can prettify grisly policy choices.
The Oklahoma case is the latest in a series of failed drug-assisted executions. They bring to mind the string of gruesome deaths in the 1980s and ’90s that led to the nation’s virtual abandonment of the electric chair as a favored means of execution. One of the most horrifying was the 1997 electrocution in Florida of convicted murderer Pedro Medina, whose head burst into flames from the state’s faulty electric chair, already known then as “Old Sparky.”
Like lethal injection, the electric chair was conceived as a forward-looking, humane execution method, but in many cases its effects appeared tantamount to torture. Florida attorneys got the U.S. Supreme Court to take a case challenging the electric chair’s constitutionality in 1999; the court dropped the issue in 2000 after Florida switched from the electric chair to lethal injection as its primary method of execution.
Oklahoma had become the birthplace of modern lethal injection on May 11, 1977, when state medical examiner Jay Chapman, a physician, described to legislator Bill Wiseman the three-drug cocktail Chapman had devised for relatively painless executions. Wiseman introduced a bill based on the technique that afternoon, and Oklahoma later became the first state to enact lethal injection.
Though a physician invented lethal injection, physicians are not supposed to carry it out or even attend an execution in a professional capacity. The American Medical Association says its members, “dedicated to preserving life when there is hope of doing so,” should never participate in executions.
That prohibition is one reason why lethal injection has become such an unpredictable execution method. It takes medical skill to inject the three parts of the common cocktail — an anesthetic to render the inmate unconscious, followed by a paralyzing drug to halt breathing and potassium chloride to stop the heart. But the absence of medical professionals makes botched and inhumane executions more likely. Chronic shortages of the drugs themselves exacerbate the problem. Many pharmaceutical companies, which like physicians prefer extending life to ending it, have stopped producing or supplying the necessary drugs for state correctional systems.
The officials who inject the drugs, though sometimes trained as emergency medical technicians, have been known to miss the vein or stick needles through veins and into the flesh. A 2005 study in the medical journal The Lancet found that in 43 percent of cases, inmates had received insufficient anesthesia and may have been conscious — though paralyzed — while the other drugs did their work.
Failure to get the needle in the vein properly is a suspected reason why Lockett’s dosage was thrown off. … These problems do not outweigh the horrible crimes of which all these inmates were convicted. But they do call for an honest reappraisal of the quest for sanitary killing by the state. Modern medicine can’t cleanse the death penalty. It may, however, teach an appreciation for truly humane approaches, like that fleeting moment when the state of Oklahoma stopped trying to kill its inmate and threw its energy into saving him.
Execution is one thing; torture is another
From Dahlia Lithwick, at Slate
Given that Oklahoma planned to kill Clayton Lockett Tuesday night, and that they managed to do it, you would be forgiven for thinking that nothing all that terrible happened, beyond making the experience far more unpleasant for Lockett, and for the witnesses in attendance. But we are a country that at least claims to care about how we execute people—we want it to appear medicalized, and painless, and clinical. And we’re also a country that values justice, an ideal sometimes at odds with another value: vengeance. The Lockett execution proves yet again that the two goals are not always perfectly aligned and that sometimes in the breakneck desire to get vengeance, it’s justice we murder.
How did we get here? While polls generally show that about 50 percent of Americans still support the death penalty, questions about the massive racial disparity in how it’s administered, the failures of the capital defense system, and tooth-rattling data from the Innocence Project about errors in whom we execute have led even the most stouthearted proponents to have doubts about how we punish by death. …
One of the arguments that nobody makes out loud but is usually offered freely in the comments of stories about the death penalty goes this way: Lockett deserved to suffer; his victim certainly did. Lockett was convicted of murdering 19-year-old Stephanie Neiman in 1999, in the midst of a robbery, watching as she was buried alive. But the law doesn’t really care that some people want death row inmates to suffer horrible brutal deaths. The law bars cruel and unusual punishment. When untested secret drug protocols are tried out on gasping, jerking prisoners, that is the definition of cruel and unusual. That is engaging in torture, whether the curtain is pulled or not.
So as we engage in another round in the vital debate over the death penalty, and how we choose to execute people and who we choose to execute and the growing proof that we may be executing those who are innocent (a new study reveals that as many as 4 percent of the inmates sentenced to death are innocent), we should ask ourselves whether there is any role left for careful legal deliberation, or whether speed and revenge are all that really matter. Because in addition to screwing up an execution this week, executive and legislative officers in Oklahoma also threatened and violated basic principles of judicial independence. …
The death penalty is still legal in America, and to the extent you want to debate that, you can and should. But torturing prisoners is not legal, and when state actors fall over one another to secretly experiment with new drugs, that’s just a sin.
The status quo just won’t work
From att0rney William Peacock, in The Strategist blog at Findlaw.com
Few will mourn Clayton Lockett. He was convicted, beyond a reasonable doubt, of shooting 19-year-old Stephanie Neiman with a sawed-off shotgun before watching his friends bury her alive. Along with Charles Warner, a man convicted of raping and murdering an infant, he was set for a double execution in Oklahoma on Tuesday.
Thanks to a blown vein, an unproven three drug cocktail, and an excruciating death by heart attack, Lockett’s name will live on as a case for ending the death penalty, while Warner will enjoy a short stay of execution. This botched execution followed a second botched execution in Oklahoma earlier this year.
Lockett’s death should give both sides of the capital punishment debate pause, so long as cruel and unusual punishment remains unacceptable. Are we OK with using untested drug combinations, sourced secretly from compounding pharmacies, often with questionable results? Are we OK with a state’s governor stating that she would not follow her high court’s orders, or state lawmakers threatening to impeach that court’s judges unless they reversed a stay of execution?
Are we OK with 3 percent of all executions, and 7 percent of lethal injections, being botched, leading to cruel, torturous ends for admittedly vile criminals? …
Lockett’s painful death is the case study for reexamining our current capital punishment scheme. Lethal injection was supposed to be a more humane way of executing criminals. It has a higher error rate than the older, more “barbaric” methods, according to a study by Amherst College professor Austin Sarat. Over the last few years, as the supply of execution drugs have run dry, states have turned to expired drugs, compounding pharmacies, and other questionable sources. All of this is made possible by politicians’ threats of impeachment and disobedience.
Maybe there is a method of execution that isn’t cruel and unusual, but the status quo may well be.
About the Author