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.

Clayton Lockett and Charles Warner.
Oklahoma death row inmate Clayton Lockett (left) died Tuesday night following a botched execution attempt. The execution of Charles Warner (right) was also scheduled for that night, but it has been stayed.

Photos via Reuters

Tuesday night, the state of Oklahoma accidentally killed a man in the middle of trying to execute him. Clayton Lockett, 38, died of a heart attack about 40 minutes after the first drug in the state’s new, top-secret, three-drug lethal injection protocol was administered. According to press reports, after the first drug in the previously untried cocktail was administered, Lockett was briefly unconscious, then began “writhing and bucking” on the gurney. At that point, prison officials pulled a curtain to shield the witnesses (or themselves) from what soon became a disaster. Robert Patton, director of Oklahoma’s Department of Corrections, stopped Lockett’s execution about 20 minutes after the drug that should have immediately sedated him was administered. He later said there had been “vein failure.” Lockett’s lawyers dispute that. A second execution, scheduled for later that night, was stayed so that the state can perform an autopsy and figure out how it is they tortured a man to death.

Dahlia Lithwick Dahlia Lithwick

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

Given that Oklahoma planned to kill Clayton Lockett Tuesday night, and that they managed to do it, you would be forgiven for thinking that nothing all that terrible happened, beyond making the experience far more unpleasant for Lockett, and for the witnesses in attendance. But we are a country that at least claims to care about how we execute people—we want it to appear medicalized, and painless, and clinical. And we’re also a country that values justice, an ideal sometimes at odds with another value: vengeance. The Lockett execution proves yet again that the two goals are not always perfectly aligned and that sometimes in the breakneck desire to get vengeance, it’s justice we murder.

How did we get here? While polls generally show that about 50 percent of Americans still support the death penalty, questions about the massive racial disparity in how it’s administered, the failures of the capital defense system, and tooth-rattling data from the Innocence Project about errors in whom we execute have led even the most stouthearted proponents to have doubts about how we punish by death. Several states have announced moratoriums and the raw number of executions has dropped. In the meantime, however, we have messed up the lethal injection system—used in all but one of the 32 states that have the death penalty—almost irreparably.

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For years, a shortage of certain execution drugs has plagued American death penalty jurisdictions. The old lethal injection protocol required the administration of three drugs: The first is a sedative, sodium thiopental. Once an inmate is unconscious, the second drug, a paralytic, is administered. The third drug, potassium chloride, stops the heart. But the sodium thiopental suddenly dried up. In 2011 the American suppliers of sodium thiopental announced that due to liability concerns they wouldn’t make it anymore. European producers also stopped providing the drug to the states that allow for capital punishment. That left the states to troll around among so-called compounding pharmacies—extremely lightly regulated laboratories—which custom-mix drugs without Food and Drug Administration approval. Most importantly, departments of corrections in Georgia, Louisiana, Missouri, Oklahoma, Tennessee, and Texas then lowered a veil of secrecy over their new protocols, denying anyone—including in some cases the judicial branch—information about which drugs they planned to use, where they got them, and how they’ll work.

So what happened in Oklahoma? In suits filed in January, defense attorneys for both Lockett, who died Tuesday night, and for Charles F. Warner, the man whose execution was stayed, unsuccessfully challenged the state secrecy clause, which allows the government to keep the state’s execution protocols a secret. They argued that it violates the Constitution’s guarantee against cruel and unusual punishment, and with good reason: In January, Michael Lee Wilson, the first inmate to be executed in Oklahoma this year, said, “I can feel my whole body burning,” 20 seconds after being injected with the state’s three-drug protocol. In Ohio earlier this year, Dennis McGuire took 26 minutes to die, according to one eyewitness, convulsing and gasping for air as horrified witnesses looked on. Ohio was also using an untested drug protocol that they are now rethinking.

Oklahoma delayed the Lockett and Warner executions in March. The state eventually revealed that it had decided to use a new, three-drug protocol: midazolam as the pain-relief agent, vecuronium bromide as the paralytic, and potassium chloride to stop the heart. The combination had been tried only once before, in Florida, where the protocol called for five times more midazolam. Without sufficient sedatives, the second two drugs are known to cause agonizing suffocation and pain. 

On March 26, an Oklahoma district court judge found the state secrecy rule unconstitutional. The state has a complicated two-tiered appellate court system that gives the state Supreme Court jurisdiction over civil matters and the Court of Criminal Appeals jurisdiction over criminal appeals. The CCA denied several requests for stays. The two courts bickered over jurisdiction. Then, on April 22, the Oklahoma Supreme Court voted 5–4 to grant an indefinite stay of both executions, to avoid a miscarriage of justice, and remanded the case back to the state Court of Criminal Appeals. The very next day, Oklahoma’s Republican governor, Mary Fallin, issued a press release saying that the state Supreme Court had acted “outside of its constitutional authority” and, overriding the Supreme Court, she reinstated Lockett’s execution for April 29. The next day, a Republican member of the Oklahoma House of Representatives, Mike Christian, began drafting a bill seeking to impeach all five state Supreme Court justices who had voted to issue the indefinite stay. That same day, the state Supreme Court reinstated the execution, dissolving its own stay, and reversing itself on the secrecy clause. So the execution proceeded, or didn’t, depending on what you view the ultimate goal of such things to be.

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.”

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.