Our Politicized Constitution: Did politics subvert the rule of law, leading to a botched execution?
By Mark Earley and Virginia Sloan

Last night, we witnessed the latest – and what by all accounts may be the worst – chapter in the practice of using the execution of prisoners as an opportunity to test previously untried lethal injection drugs and procedures. Clayton Lockett was the first of two death row inmates Oklahoma intended to execute last night under a new lethal injection procedure shrouded in secrecy. For reasons that will only be made clear through a thorough and independent investigation, More than forty agonizing minutes after it began, Lockett’s botched execution left Oklahoma and the nation wondering what went wrong.

In recent years, state governments have faced drug shortages because drug manufacturers have refused to allow states to use their products to execute prisoners. In response, too many states have started down a dangerous path, attempting to hastily execute prisoners with drugs never before used in execution – and often obtained in secret.  The Constitution Project’s Death Penalty Committee’s report, Irreversible Error, being released next weeks, warns of the dangers of adopting untested procedures and drugs without adequate public disclosure.

Last night’s events clearly and horribly reveal that the efforts of death row inmates and their counsel to shine a light on the lethal injection procedures states have tried so hard to obscure are justified attempts to enforce their constitutional right against cruel and unusual punishment.  In response, courts, including those in Oklahoma, have avoided discussion of the serious constitutional concerns raised by the state’s use of secret drugs and dosages never before used in execution of humans and allowed these executions to proceed.

According to the New York Times, Lockett was to be injected with a lethal dose of “midazolam, a benzodiazepine intended to render the prisoner unconscious and unable to feel pain. This was followed by injections of vecuronium bromide, a paralyzing agent that stops breathing, and then potassium chloride, which stops the heart.”

Multiple sources report that, after being declared unconscious ten minutes into the execution procedure, Lockett made audible noises. Thirteen minutes after the first drug was administered, the inmate laid alive on the gurney, shaking and convulsing. One witness to the execution stated that after Lockett had been declared unconscious, he was writhing in pain, bucking, and that his head and shoulders rose up off the gurney. Then, about 15 minutes into the execution, the officials closed the blinds so that the witnesses could not observe what was happening.  Witnesses stated that it was akin to watching someone be tortured. Prison officials halted the execution about 20 minutes after it began. The director of corrections soon thereafter announced that the inmate’s vein had failed and that the “line was blown,” meaning that the drugs were no longer being delivered through the circulatory system, as they were supposed to.

More than 40 minutes in to the ordeal, despite efforts to resuscitate him, Lockett died of a massive heart attack. It is unknown whether this will be classified as an execution.  Prison officials claim that it was a process error during the execution, not the drugs used, that resulted in Lockett’s horrific death.  Oklahoma Governor Mary Fallin has directed the Department of Corrections (DOC) to conduct an investigation to determine what went wrong, but an independent investigation by an organization outside the DOC is necessary to determine, with confidence, what really happened. The second execution scheduled for last night – Charles Wallace – has been delayed for two weeks, not nearly enough time for a thorough investigation to be conducted.

The botched execution of Lockett came on the heels of what would be aptly called “follies” if were not for the fact that the issue involves that taking of a life, the most serious act a government can undertake.  This included a standoff between the Oklahoma Court of Appeals, the Oklahoma Supreme Court, the Governor and the Legislature.  The Court of Criminal Appeals and the Oklahoma Supreme Court tussled for days over which court had authority to stay the execution.  An initial stay issued by the Supreme Court of Oklahoma (in order for the state to reveal the source of the drugs to be used in the execution) was lifted, but, notably, only after the state legislature had threatened the five members of the Court who had voted for stay of execution with impeachment.  The Governor, stating that the Oklahoma Supreme Court had no authority to stay an execution, issued a stay that expired last night – effectively setting up the execution of two prisoners in the same night.  The US Supreme Court – as it has in every single case involving secrecy of drugs to be used in executions – failed to intervene.

This political turf war hijacked the rule of law in Oklahoma, and may very well have led to  the painfully botched execution that clearly violated Clayton Lockett’s  Eighth Amendment right against cruel and unusual punishment.  The Constitution Project’s Death Penalty Committee comprises both proponents and opponents of the death penalty, but in Irreversible Error all members agree that states must no longer engage in hurried and secretive processes to execute prisoners.  The desire to see retribution cannot trump the rule of law.

Mark Earley is a former Republican Attorney General from Virginia and a member of TCP’s Death Penalty Committee.  During his tenure as attorney general, he oversaw 36 executions.  Virginia Sloan is president of TCP.

Donate Now

US Constitution

Upcoming Events