The state of Oklahoma narrowly avoided a constitutional crisis over the death penalty on Wednesday evening, after the governor moved to defy a state Supreme Court order and legislators called for impeachment of several justices.
This constitutional stand-off began on Monday, when the court issued an order halting two executions. Gov. Mary Fallin (R) responded with an executive order saying the state might proceed with the executions, despite the court order. Rep. Mike Christian (R) ordered articles of impeachment drafted on Wednesday, claiming the justices engaged in a “willful neglect of duty” by halting the executions of Clayton Lockett and Charles Warner. After this pushback from the political branches, the court lifted its order on Wednesday and allowed the executions to proceed.
The court initially stopped the executions because the inmates had sued to find out the source of the state’s lethal drugs. Oklahoma law says, “The identity of all…persons who supply the drugs…for the execution shall be confidential.” The Oklahoma Supreme Court ultimately rejected the inmates’ argument that they needed this information to assert their right to avoid “cruel and unusual” punishment under the Eighth Amendment.
The plaintiffs’ lawyer told the New York Times that the state’s three-drug cocktail has only been used “in Florida, whose protocol called for five times more midazolam, leaving serious questions about whether the execution will comport with the Eighth Amendment…” States are struggling with the question of how to execute prisoners when many drug manufacturers refuse to provide the drugs. The U.S. Supreme Court recently allowed one execution to go forward, even though the state received the lethal drugs from a secret unidentified source, thought to be a “compounding pharmacy” that is not regulated by the Food and Drug Administration.
Justice Steven Taylor’s dissent described the inmates’ lawsuit as “frivolous.” He compared knowledge of the drug supplier to knowledge of the source of electricity for the electric chair. “If they were being hanged, they would have no right to know whether it be by cotton or nylon rope.” But a court needs more knowledge about lethal injection if the court is to determine whether these inmates could be left suffocating and gasping for air for 25 minutes in the execution chair.
Justice Taylor argued the case should have been transferred to the Oklahoma Court of Criminal Appeals, the highest state court for criminal appeals. But the criminal court repeatedly rejected the case, arguing it had no jurisdiction over the civil lawsuit. Legislators also claimed the court infringed on the criminal high court’s authority.
Although this high-profile case may have encouraged them to go further, Oklahoma legislators have long been trying to exert more control over the state Supreme Court, threatening to politicize its decisions. These efforts grew more urgent after the court ruled unconstitutional a tort reform bill in 2013. Fallin then called a rare special legislative session just to pass another tort reform bill. The Tulsa World noted that Fallin had received more than $700,000 in campaign contributions from the health care industry, which would “benefit from any tort reform legislation.” The same campaign donors would benefit from a state Supreme Court that would uphold Fallin’s new tort reform bill.
The legislators’ screeds about the 2013 tort reform decision did not lead to any changes for the court. The “soft on crime” angle, however, is guaranteed to get voters’ attention, even if the rights of criminal defendants are collateral damage. A 2013 Center for American Progress report surveyed hundreds of criminal cases in seven states with judicial elections and concluded, “The fear of being portrayed as ‘soft on crime’ is leading courts to rule more often for prosecutors and against criminal defendants.” The justices in Oklahoma must face the voters in retention elections, in which voters decide whether to keep them in office. The death penalty has played a key role in justices losing retention elections in California and Tennessee.
Justice Taylor’s dissent implied that the constitutional showdown will discourage similar rulings from the Oklahoma Supreme Court: “I hope that this case ends any thought of future journeys down this path…” Justice Taylor’s colleagues felt they needed to act because the criminal court had rejected the appeal and the inmates were scheduled to die. Now the justices are paying the price.