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 okay with using untested drug combinations, sourced secretly from compounding pharmacies, often with questionable results? Are we okay 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 okay with 3 percent of all executions, and 7 percent of lethal injections, being botched, leading to cruel, torturous ends for admittedly vile criminals?
At 6:23 p.m., the execution began. At 6:30 p.m., officials checked to see if he was unconscious. Lockett said, "I'm not." By 6:33 p.m., he was declared unconscious. He twitched sporadically until 6:36 p.m., when he began moving his head. He tried speaking for a few minutes before saying, "Man," while trying to get up. The blinds were lowered before a massive heart attack finally killed him at 7:06 p.m. A prison official told the witnesses that a "vein line had blown," reports KFOR-TV.
Botched Legal Challenge
Like many states, Oklahoma has been forced to rely upon secretly-sourced drugs after major manufacturers cut off the supply of drugs for executions. Legal challenges to state secrecy laws are being fought out across the country, from Oklahoma to Missouri to Georgia, with Oklahoma's Supreme Court declaring last week that the secrecy laws were constitutional.
How did those judges reach that conclusion? According to Andrew Cohen, after the trial court declared the law unconstitutional, stating, "I do not think this is even a close call," the case headed to the state's dual civil/criminal track appellate system, where it led to a separation of powers crisis.
The Court of Criminal Appeals refused to hear the case, citing a lack of jurisdiction. The Oklahoma Supreme Court, which handles civil cases, said that the criminal court did have jurisdiction, then, itself, issued a stay on Lockett and Warner's executions. The criminal court then criticized the civil court for stepping on its turf.
Last Monday, Oklahoma Governor Mary Fallin, mere hours after the stay was put in place, declared that she would not abide by the state Supreme Court's order, which she argued was "outside the constitutional authority of that body." State legislators threatened impeachment on Tuesday.
By Wednesday, the five justices of the Oklahoma Supreme Court, who had previously expressed reservation about the legality of the law, held that it was constitutional. Lockett and Warner's executions, using those secret drugs, were then set for the following Tuesday. Warner, thanks to the allegedly blown vein, was granted a two-week stay.
Cruel and Unusual
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.
- Hill Dissent - Bypass AEDPA for Those Exempt from Execution? (FindLaw's Eleventh Circuit Blog)
- The Supreme Court's Death Penalty Problem: Drugs, Vague Standards (FindLaw's U.S. Supreme Court Blog)
- Stay of Execution of Smulls Vacated; Compounding Problem Remains (FindLaw's U.S. Supreme Court Blog)