"The Cruel And Unusual History That Led To Oklahoma’s Cruel And Unusual Execution"
CREDIT: AP Photo/Oklahoma Department of Corrections
Clayton Lockett was supposed to be unconscious. The state of Oklahoma, like most states that still enforce death sentences, uses a three-drug cocktail to execute inmates. The first drug was supposed to knock Lockett out. The second drug would paralyze him. The third, potassium chloride, stops the heart.
But it was clear midway through Lockett’s execution that he was not unconscious. Lockett’s “body started to twitch,” according to his attorney Dean Sanderford. Then Lockett “mumbled something I couldn’t understand.” Soon, “[t]he convulsing got worse, it looked like his whole upper body was trying to lift off the gurney. For a minute, there was chaos.”
At 6:39, sixteen minutes after the execution began, Lockett was still alive. According to Cary Aspinwall with the Tulsa World, Lockett lifted own head shortly before corrections officials closed a curtain that obscured the execution chamber from witnesses. By one account, Lockett tried to speak during the botched execution, saying the word “man” aloud. Corrections officials later said that Lockett had a “blown vein” and that they were “not sure where drugs went in his body and how much absorbed.” Lockett’s vein, according to a Department of Corrections spokesperson had “exploded.”
We Knew This Would Happen
The slow, torturous ordeal that marked Lockett’s final hour of life — he died of a heart attack at 7:06, forty-three minutes after the execution started — should surprise no one. As international opinion turns sharply against the death penalty — only 22 nations not currently experiencing military conflict carried out an execution in 2013 — America states that still carry out executions are finding it harder and hard to obtain the drugs they use to kill people. Europe imposed tight restrictions on the exportation of several drugs used in executions, and many drug manufacturers simply refuse to sell the drugs to state officials who intend to use them to kill someone. The result is that many states have turned to “compounding pharmacies,” which sell loosely regulated drugs of uncertain quality, to obtain drugs for executions.
Lockett is not the first inmate to visibly suffer during his execution since states lost access to reliable drugs. Michael Wilson, another Oklahoma man executed last January, cried out that “I feel my whole body burning” shortly after he was injected with a drug known as pentobarbital. Dennis McGuire, an Ohio inmate, spent nearly 25 minutes gasping for air before he finally expired.
The dangers presented by drugs of questionable quality are compounded by the fact that executions are rarely supervised by medical professionals. As ThinkProgress’ Tara Culp-Ressler explains, the “American Medical Association, the American Public Health Association, the American Board of Anesthesiology, and the American Nurses Association all prohibit their members from assisting in executions, saying that practice violates their medical code of ethics. So the IV is usually administered by another state official who’s not necessarily an expert in anesthesiology, often an EMT.”
So death row inmates receive unreliable painkillers, and may even be injected with tainted drugs that increase their suffering. And there is no guarantee that these drugs are administered properly. Although a doctor was apparently present during Lockett’s execution, one reporter says that “the doctor was just an attending physician to monitor the inmate and his condition throughout.” Under Oklahoma’s execution protocol, Lockett’s IV would not have been inserted by a medical or nursing professional. That may explain why his vein “exploded.”
Hiding The Truth
We know that Lockett, and other inmates like Wilson and McGuire, suffered horribly before their deaths. But the truth is that this kind of suffering may be the norm. We do not know how much pain the inmates who appear to drift off quietly actually feel during their executions — and the only people who can tell us what they were feeling are dead.
The reason we know so little about the pain caused by lethal injection is because of the second drug used in many states’ execution protocols — the drug that paralyzes inmates before they are injected with the poison that stops their heart. As Justice John Paul Stevens explained in 2008, “[b]ecause it masks any outward sign of distress,” the paralytic drug “creates a risk that the inmate will suffer excruciating pain before death occurs.” Stevens wrote those words about a particular drug, pancuronium bromide, that was used in a Kentucky execution protocol that was before his Court. “Several States—including Kentucky—have enacted legislation prohibiting use of [pancuronium bromide] drug in animal euthanasia,” according to Justice Stevens. “It is unseemly—to say the least—that Kentucky may well kill [people] using a drug that it would not permit to be used on their pets.”
Pancuronium bromide serves “no therapeutic purpose,” according to the trial court in that case. And, yet, the Supreme Court upheld its use. Oklahoma’s execution protocol also includes pancuronium bromide.
When the Kentucky case, a case known as Baze v. Rees, was pending before the Supreme Court, many death penalty opponents were hopeful that it would strike a severe blow against state-sponsored killings. Indeed, while Baze was pending before the Court, most states honored — or were ordered by courts to honor — an effective moratorium on lethal injections, lest a person be executed under a protocol that the Supreme Court was about to declare unconstitutional.
But the Supreme Court did not declare Kentucky’s lethal injections protocol unconstitutional. Though the Court was very divided in their reasoning and no more than three justices signed on to a single opinion, seven justices voted to uphold Kentucky’s lethal injection procedure.
One consequence of Baze is that it gives states an incentive to model their own execution protocols upon the Kentucky procedure upheld by the Supreme Court — since they can now point to a binding decision by the highest court in the land which says that that the Kentucky protocol is constitutional. As Chief Justice John Roberts wrote in his plurality opinion, “[a] stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.”
The process used to kill Lockett, however, differs from the procedure upheld in Baze in one important way. Kentucky used a drug known as sodium thiopental as the first part of their three drug cocktail. This drug, however, is largely unavailable for executions due to objections by manufacturers and foreign governments to its use to kill inmates. Without access to sodium thipental, Oklahoma used a different drug, known as midazolam, to sedate Lockett.
The crux of Roberts’ plurality opinion is that the inmates challenging Kentucky’s execution protocol had not shown sufficient risk that the drug sodium thipental would be improperly administered to them, causing them to suffocate from the second drug in the protocol or to experience great pain from the third drug. Whatever the wisdom of this decision, we now know that the risk of suffering is very real under Oklahoma’s protocol. Clayton Lockett endured that very suffering for 43 minutes before he died.
Last week, the Oklahoma Supreme Court briefly stayed Lockett’s execution after his attorneys sought more information on the drugs that would be used to kill him. They later dissolved that stay. Given the way Lockett’s execution played out, it is difficult to argue that Oklahoma’s court system honored the Constitution’s ban on “cruel and unusual” punishments when they allowed him to be executed.
Asking The Wrong Question
It is likely that the judicial system will reconsider Oklahoma’s execution procedure in the wake of Lockett’s botched execution. But there is something myopic about this inquiry. As Roberts noted in Baze, American states have gone to great lengths to sanitize executions — “[t]he firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection.” We no longer spill blood at executions. Or intentionally subject witnesses to the spectacle of watching a dying man or woman suffer. American executions don’t actually look like executions. They look like medical procedures.
We can replace the gallows with a gurney, but we have not succeeded in erasing the racial inequities at the core of our death penalty. In Louisiana, death sentences are 97 percent more likely in murder cases where the victim is white. In Alabama, 6 percent of murders involve black defendants and white victims, but 60 percent of black death row inmates were convicted of murdering a white person. In the nation as a whole, only 20 white people have been executed since 1976 for killing a black person. 269 black defendants were executed for killing someone who is white. The state of Florida, according to the American Civil Liberties Union, has never executed a white person for killing a black person. Ever.
Last year, there were 39 executions in the United States. 32 involved a white victim. Only one white person was executed for killing only a black man.
Even if these disparities can be eradicated, the death penalty likely still fails as a method of preventing crime. According to Dartmouth University statistician John Lamperti, “an overwhelming majority among America’s leading criminologists [have concluded that] that capital punishment does not contribute to lower rates of homicide.” Murder rates in states that do not sentence people to die are consistently lower than murder rates in states that do.
The death penalty is also increasingly uncommon throughout the nation. Though Chief Justice Roberts begins his opinion in Baze by claiming that the law in “35 other States and the Federal Government” permits death sentences, this claim is misleading. According to a 2011 study by the Death Penalty Information Center, just 12 states executed someone in 2010, and only 7 states executed more than one person. Thirty-two U.S. jurisdictions executed no one in the previous five years, and more than half of these jurisdictions haven’t executed anyone since the Supreme Court created the modern constitutional regime governing death penalty cases in 1976. More than one-third of all American executions took place in just one state — Texas.
At the local level, the data is even starker. One study that examined death sentences and executions from 2004-2009 discovered that only 10 percent of American counties returned a single death sentence, and only 1 percent of counties produced more than one death sentence. In 2011, an estimated 14,612 murders occurred in the United States, but there were only 43 executions.
Because the Constitution forbids “cruel and unusual punishments,” the death penalty stands on much weaker constitutional ground as it becomes more and more “unusual.”
And it is doubtful that many people could watch the slow, painful death of Clayton Lockett, and conclude that the death penalty is not “cruel.”