How Oklahoma's Botched Execution Affects the Death-Penalty Debate

State officials used untested drugs from a secret source to end the life of Clayton Lockett, who took more than 45 minutes to die. 
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Clayton Lockett, left, took more than 45 minutes to die during a death-row execution by lethal injection on Tuesday night. As a result, the scheduled execution of Charles Warner, right, was stayed. (Reuters/The Atlantic)

Officials in Oklahoma had many reasons to suspect there would be problems with the execution of death-row inmate Clayton Lockett last night. They were using an untested mix of lethal drugs, never previously used in that dosage combination, obtained through secret means, which precluded the possibility of oversight from attorneys or medical officials on the quality of the drugs. They were warned by medical experts, and asked by defense attorneys, to open up the process to review—by the courts, by doctors, by some members of the public. Yet they refused.

Although officials in other states have also denied requests for transparency about lethal injection protocols, Oklahoma's legal conflicts on the issue have been particularly intense. When the state supreme court early last week sought to halt the process, state lawmakers quickly moved to try to impeach the justices. And the governor, Mary Fallin, issued an order decreeing that she would not abide by the judicial ruling of her state's highest court.

So the execution of Clayton Lockett proceeded. What happened was anything but standard: The man's heart essentially exploded after officials stopped pumping his body full of the deadly chemicals. "We always argue that something like this is going to happen," one defense attorney close to the case told me Tuesday night, "but we always hope it won't." This time, it did. 

KFOR in Oklahoma provided a timeline:

6:23 PM – Prison officials raise the blinds. Execution begins.

6:28 PM – Inmate shivering, sheet shaking.  Breathing deep.

6:29 PM – Inmate blinking and gritting his teeth.  Adjusts his head.

6:30 PM – Prison officials check to see if inmate is unconscious.  Doctor says, “He’s not unconscious."  Inmate says “I’m not.”  Female prison official says, “Mr. Lockett is not unconscious.”

6:32 PM – Inmate’s breathing is normal, mouth open, eyes shut. For a second time, prison officials check to see if inmate is unconscious.

6:33 PM – Doctor says, “He is unconscious.” Prison official says “Mr. Lockett is unconscious.”

6:34 PM – Inmate’s mouth twitches.  No sign of breathing.

6:35 PM – Mouth movement.

6:36 PM – Inmate’s head moves from side to side, then lifts his head off the bed.

6:37 PM – Inmate lifts his head and feet slightly off the bed.  Inmate tries to say something, mumbles while moving body.

6:38 pm – More movement by the inmate. At this point the inmate is breathing heavily and appears to be struggling.

6:39 PM – Inmate tries to talk. Says “man” and appears to be trying to get up. Doctor checks on inmate. Female prison official says, “We are going to lower the blinds temporarily." Prison phone rings. Director of Prisons Robert Patton answers the phone and leaves the room—taking three state officials with him.

Minutes later—the director of prisons comes back into the room and tells the eyewitnesses that there has been a vein failure. He says, “The chemical did not make it into the vein of the prisoner. Under my authority, we are issuing a stay of execution.”

And, less than a half hour after that, Lockett was pronounced dead of what officials said was a heart attack. This could have been foreseen: The Associated Press reported late last night that two of the drugs Oklahoma used on this man "carry warnings that they can suppress the respiratory system and the third warns that cardiac trouble can occur at high but non-lethal doses..." The idea that there was "vein failure" is dubious. Lockett was neither a drug user nor a skinny man. The director of the ACLU of Oklahoma called it a "human science experiment." 

In killing Clayton Lockett this way, state officials thus elevated a convicted murderer to a status he surely did not deserve in life or would have ever obtained had his execution been preceded by acceptable levels of due process. Lockett was not an innocent man who had been framed by the police, ignored by his attorney, or railroaded by a bigoted judge or jury. If we are to have a death penalty in this country, he was a suitable candidate. But in its zeal to kill him, in its frustration about the delay in meting out punishment, Oklahoma turned him into a symbol.

A symbol of what? Many things. What happened last night was the inevitable result of a breakdown in government in Oklahoma, where frustration at the continuing delay in the resolution of Lockett's case blinded state officials to the basic requirements of due process. From these officials' perspectives, the fight over this man's fate seemed to be personal, rather than a dispassionate exercise in bureaucracy. 

This has exposed yet another instance where the "machinery of death," to use Justice Harry Blackmun's immortal phrase, is incapable of running with the sort of precision necessary to work a capital regime. What happened last night to Clayton Lockett surely won't convince lawmakers in Oklahoma or Texas or Missouri or Louisiana or Alabama to end their experiment with the death penalty. But if what happened last night in Oklahoma doesn't cause our nation's judges to stop the cycle of secrecy over lethal injections, it will be a scandal. 

Indeed, Lockett now is a symbol of feckless judicial review by the federal courts, including the United States Supreme Court. The justices in Washington have had countless opportunities in the past year to stop the madness caused by the current generation of lethal-injection secrecy. They long ago could have and should have accepted one of those cases for review to establish standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners. What happened to Clayton Lockett last night is on them, too.

It's on Justice Antonin Scalia, the man of great faith, who just a few months ago, in oral argument in Hall v. Florida, lamented the slow pace of executions in this country and blamed his colleagues for the delay. It's on the state judges in Oklahoma, and not just those on the Court of Criminal Appeals, who consistently refused to vet the new legal issues raised by the use of these new drugs. And it's on the state Supreme Court, which backed down from the stay it had issued.

But what of the family members of Lockett's long-ago victim, Stephanie Neiman? They issued a sad, earnest statement last night that was lost in the wall of coverage about the way Lockett died. Not only can they never have "closure," but now they are stuck with months or even years more legal conflict over how state officials chose to kill their daughter's murderer. 

As news of the botched execution spread last night there were two familiar and predictable threads. There were those who were shocked that such an avoidable act would take place in their name. And there were those who were glad Lockett is dead and wondered what the fuss was about. Those in the first category saw his death as another sign of the immorality of capital punishment. Those in the latter group saw it as a measure of justice. He still didn't suffer as much as his victims, one commentator after another made a point of telling me.

This latter sentiment may be a form of "justice" but it surely is not one of law. One can support the death penalty in general, and in the case of Clayton Lockett, and still be morally repulsed by the idea of torturing a man to death under color of law in circumstances in which the torturers knew or should have known their conduct would violate the Constitution. An eye-for-an-eye does not raise anyone up; it just brings us down to the level of the condemned. 

But individual calculations of morality or vengeance aren't needed to answer the many questions raised by what happened last night to Clayton Lockett. Our law—federal law, Oklahoma's law, and the law of many other states—recognizes the validity of the death penalty while requiring that it be conducted in a manner that is not "cruel." This execution violated that principle, and given the current legal situation in Oklahoma, it seems inevitable that this kind of mistake would happen.

Even worse, there is no reason to think the state won't continue to fail. By morning, the governor of the state had called for an investigation into the problem—and then rescheduled the second execution that was to take place last night for two weeks from now. The idea that this problem will be fixed in two weeks, especially without opening the process to greater transparency, seems offensive to common sense.

We are going to lower the blinds temporarily. That's the sentence from the timeline of the execution that may come to serve as an epitaph for this affair. Virtually this entire process was done in the dark, in secret, so that state officials would not have to answer basic questions about the drugs they sought to use against Lockett. And then, when those officials realized they had made a terrible mistake, down came the blinds again. Until those blinds are raised, until this process becomes transparent in Oklahoma and everywhere else, it is unworthy of a nation that teaches its children about civilization and a rule of law.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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