When the Death Penalty Turns Into Torture

The law, lawyers, and the court.
April 30 2014 5:22 PM

When the Death Penalty Turns Into Torture

Oklahoma’s botched execution was the grim but predictable result of a state more concerned with vengeance than justice.

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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.

Warner’s lawyer, Madeline Cohen, who thought she would be seeing her client put to death Tuesday night, put it to me this way: “What happened last night was so shocking, and so disheartening for anyone who believes in the separation of powers. The Supreme Court found that there were grave issues of constitutional concern and then politics got involved.” It wasn’t just the failure of the governor to honor the stay. It was that the prospect of a very serious impeachment process in Oklahoma was floated in response to the court doing its job, carefully and cautiously. As Cohen explains it, “I understand why the state Supreme Court may have felt threatened and I am disappointed. But the real culprits here are the executive branch and the legislative branch.” She adds that what she saw last night “was torture.”

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To be crystal clear: A state Supreme Court, in an effort to promote the value of justice and acting in its capacity as an independent, fact-finding, deliberative body, ordered that an execution be postponed in order to ensure that nothing like what actually happened would happen. And then a state governor, in an effort to protect the values of speed, secrecy, and vengeance, called the court’s jurisdiction into question, and a state legislator, in order to promote the value of retribution against unpopular legal decisions, initiated impeachment proceedings. According to the National Center for State Courts, this is the fourth time in four years that state high court judges have been threatened with impeachment over their judicial decisions. 

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. State courts tasked with being careful and deliberate shouldn’t cave to threats or blackmail. Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign working to keep our courts fair and impartial, says the real lesson from Oklahoma Tuesday night is this: “Political tampering with the courts and bullying of judges fed a fever that resulted in a state torturing one of its prisoners to death.”

At 6:39 p.m. Tuesday night, Clayton Lockett, who was supposed to be unconscious and numb, uttered “man” and struggled to get up. One of the officials in the room said, “We are going to lower the blinds temporarily.” But just because almost nobody saw Clayton Lockett die doesn’t mean we don’t know what happened. In its rush to exact revenge on a killer, the state tortured a man, and justice took a very harsh, very painful beating.

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

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