Botched Oklahoma execution fueling the larger debate on lethal injection

After one execution in Oklahoma went wrong on Tuesday night, the state’s governor put off a second execution scheduled for later that evening, beginning what is likely to be a bitter and emotional battle over the fate of lethal injection not just in Oklahoma, but in other states that still maintain death rows.

Clayton Lockett, who was scheduled to be put to death just after 6 p.m. Tuesday night, died of a heart attack more than 40 minutes after the process began, with a doctor halting the execution upon finding that the drugs had stopped flowing and Mr. Lockett had awakened, according to The Associated Press.

Amid an uproar over the flubbed execution, which had already been the subject of legal wrangling over the past month, the Oklahoma governor granted a 14-day stay of execution to the other man, Charles Warner, who was scheduled to die just two hours later. The governor, Mary Fallin (R), also called for a “full review” of the state’s execution procedures.

The bungled execution added an unusual turn to a fraught legal war over the two men’s fates – carried out in court after court – that has also become a prominent stage for a broader and deeper meditation over the ethics of lethal injections in Oklahoma and elsewhere.

There is little doubt that the political will in the state is to see the two men executed, according to The New York Times. Lockett was convicted in 1999 of shooting a teenage girl and standing by as two accomplices buried her alive, killing her. Mr. Warner was convicted two years before that of raping and murdering a toddler.

Still, the death penalty no longer has quite the unassailable support it once had in Oklahoma, especially not in the state’s courts, as a national battle over the legality of lethal injection has washed into the state’s courtrooms.

In recent months, a pitched battle has arisen between opponents and supporters of capital punishment over whether states have the right to use lethal injection drugs from sources they decline to name. States have been reaching out to such pharmacies over the past few months, after the European manufacturer of the most common drug used in the procedure cut off supplies to death houses.  

Death penalty opponents have leveraged the issue of states using secret suppliers' drugs – which opponents say could be of poor quality, bringing unconstitutional suffering to the condemned – to get bigger questions about the legality and ethics of capital punishment back into courtrooms.

Indeed, in the two Oklahoma cases, the men’s lawyers had contended that the three-drug cocktail Oklahoma planned to use did not jibe with a constitutional ban on cruel and unusual punishment. And the state, after running out of its usual lethal injection drugs, had sourced its new batch of drugs from a pharmacy it declined to name, citing the pharmacy’s wishes to stay out of the cross hairs of the debate over capital punishment. Lawyers for the condemned men argued in court that their clients had no way of knowing if the drugs the state planned to use were clean.

The lawyers also argued that Oklahoma’s three-drug cocktail was a problem even if the drugs were safe. In January, the first execution using that cocktail ended with the Ohio inmate appearing to suffocate to death.

In Oklahoma, the state Supreme Court granted a stay of execution to both men on April 21, but Governor Fallin said a day later that the court did not have a right to intervene in executions and issued an executive order for the men to be put to death on April 29. Under state legislators’ threats to impeach the justices, the court also squashed its own order and gave the executions a go-ahead.

Lockett was declared unconscious about 10 minutes into the execution, after the first drug took effect, according to a reporter from Tulsa World who witnessed the event. But about three minutes later, Lockett began “writhing and bucking” on the execution table, according to that reporter. A doctor drew a curtain, telling media witnesses that Lockett’s vein had ruptured and that the execution would not go forward. Witnesses saw no more of the execution, and Lockett was declared dead of a massive heart attack 43 minutes after the process began.

The quality of the drug cocktail did not appear to be at fault in the execution, though some witnesses suggested that the first drug might not have worked. Instead, the issue seemed to be the state’s ability to properly administer a lethal injection, according to anti-death penalty advocates.

That raises broader questions, such advocates say, about whether states can ever provide an absolute guarantee that an execution won’t be cruel and unusual and whether the lack of a guarantee could be enough to put a stop to lethal injections in such states.

“If we are to have executions at all, they must not be conducted like hastily thrown together human science experiments,” said Brady Henderson, legal director of the American Civil Liberties Union of Oklahoma, which called for a moratorium on all executions in the state. “After tonight, there’s no speculation needed to appreciate that there are fundamental failures in our execution process,” his statement also said.

Though the US Supreme Court has declined to hear cases from two states over the legality of using lethal injection drugs from secret sources, three justices each time expressed interest in the cases, and the Oklahoma execution could help get the issue before the court, The New York Times said.