A bungled execution in Oklahoma is providing death penalty opponents with a fresh example of how lethal injections can go wrong. But the odds of successfully challenging the nation’s main form of capital punishment will probably hinge on exactly what caused the inmate’s apparent agony.
Clayton Lockett, 38, convicted of shooting a woman and watching as two accomplices buried her alive, was declared unconscious 10 minutes after the first of three drugs was administered Tuesday. Three minutes later, he began breathing heavily, writhing, clenching his teeth and straining to lift his head.
Authorities halted the execution, but Lockett died of a suspected heart attack more than 40 minutes after the process began. The execution of Charles Warner, who had been scheduled to die two hours after Lockett, was temporarily stayed.
With growing shortages of the drugs typically used for executions, in part because suppliers have come under pressure to stop providing them, states have turned to alternative combinations. Many, like Oklahoma, have sought to keep the formulations secret in order to ensure supplies would continue.
Lockett and Warner had unsuccessfully sued the state for refusing to disclose details about the drugs it would use in their executions.
Tuesday was the first time Oklahoma used the sedative midazolam as the first element in the procedure, and its dosage level was lower than that used by at least one other state, Florida, because, officials said, it wants to ensure it has an adequate supply for other executions.
An autopsy was conducted Wednesday to determine Lockett’s cause of death, and Oklahoma Gov. Mary Fallin named a member of her cabinet to lead a review of the state’s execution procedures.
“I believe the death penalty is an appropriate response and punishment to those who commit heinous crimes against their fellow men and women,” Fallin said. “However, I also believe the state needs to be certain of its protocols and its procedures for executions and that they work.”
If the execution drugs or the secrecy surrounding them played a role, defense attorneys for other prisoners could have powerful new evidence to press the U.S. Supreme Court to get involved, legal experts say.
In the wake of Lockett’s death, attorneys for some death-row inmates began planning new appeals or updating existing cases based on events in Oklahoma. Many called for moratoriums and independent investigations.
“Every prison is saying, ‘We have it under control, trust us,’” said Texas attorney Maurie Levin, who spent Wednesday preparing new briefs questioning that state’s execution practices. “This just underscores in bold that we can’t trust them, and prisons have to be accountable to the public and transparent in the method by which they carry out executions.”
In Washington, White House spokesman Jay Carney said President Barack Obama believes evidence suggests the death penalty does little to deter crime.
“But it’s also the case that we have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely,” Carney said. “Everyone would recognize this case fell short of this standard.”
Courts have been reluctant to halt executions over arguments that they violate an inmate’s constitutional guarantee against cruel and unusual punishment. In four rulings over the past 135 years, the Supreme Court has upheld the use of the firing squad (1879), the electric chair (1890), the ability of a state to try to execute a condemned inmate by electrocution again after a first attempt failed (1947) and lethal injection (2008).
The Constitution “does not demand the avoidance of all risk of pain in carrying out executions,” Chief Justice John Roberts said in the court’s 2008 decision upholding Kentucky’s lethal injection system.
Still, a minority of the high court has shown some recent trepidation about the secrecy of the process used by many states. In February, three justices — two short of the required five — said they would have blocked the execution of Michael Anthony Taylor in Missouri. A month later, four justices fell one vote short of blocking the execution of another Missouri inmate, Jeffrey Ferguson. They offered no explanation for their vote.
If Tuesday’s problems are traced to something like a collapsed vein, the high court “probably won’t feel a lot more pressure to step in,” said Thomas Goldstein, an experienced Supreme Court lawyer who also has represented death-row inmates. But if the injection chemicals themselves and the state’s secrecy emerge as important factors, “there will be great pressure for them to hear a case and require transparency.”
Tuesday’s problems marked the third time this year that an execution raised concerns about an inmate’s suffering.
In January, Ohio inmate Dennis McGuire took 26 minutes to die, gasping repeatedly as he lay on a gurney with his mouth opening and closing. That same month, Oklahoma inmate Michael Lee Wilson’s final words were, “I feel my whole body burning.”
About the Author
