Wednesday, April 30, 2014

A Botched Execution

To "botch" something is to carry out a task "badly or carelessly."  Oklahoma's botched execution Tuesday, April 29, 2014, demonstrated that word in its absolute in-glory.  (read the New York Times account here).  Badly?  Executions always cause at least psychological pain.  Even if everything goes perfectly, the physical pains involved in injecting the drugs may not be trivial either, especially when stripped of its normal healing association and replaced by the grimmest. Still, an execution can be carried out badly in countless ways when it causes additional anxiety, humiliation, and physical pain.  The execution of Clayton Lockett as witnessed by reporters was badly done in just this sense.  Prison officials said Lockett's vein "exploded."  Lockett was seen to writhe and shake uncontrollably, attempted to rise up from the gurney to which he had minutes earlier been completely strapped down, and cried out "man"; all after execution officials had announced him unconscious.  Officials apparently blamed the condition of Lockett's veins and further investigation is promised, but these events are extreme for executions in the modern era and fully profile the case that defense lawyers have been making for years that lethal injections in some cases can amount to torture.

But where Oklahoma Governor Mary Fallin and the State's legislators wrote the book on botched is on the "carelessly" branch of the term.  In their zeal to assure a supply of lethal chemicals to kill prisoners at a time when supplies have become scarce due to international revulsion at American capital punishment, Oklahoma politicians passed a law shielding the sources of the execution drugs and adamantly refused defense requests for information about their origins.  When the Oklahoma Court of Criminal Appeals (the state's highest court for criminal appeals) refused to stay the execution despite a lower court having found that Lockett's had right to information about the drugs,  the Oklahoma Supreme Court, which has no regular jurisdiction over criminal appeals, stepped in to issue a highly unusual stay in the interests of justice, only to retreat after the Governor and legislature furiously attacked the jurists, threatening to ignore their decision and impeach them as well.

Not content with having bullied the courts out of the way, and eager to show how trivial defense concerns about the execution drugs were,  Governor Fallin ordered a double execution, a rarity in the modern era and the first in Oklahoma since 1937.  Executions, even when they are not botched, exact a horrible toll on remaining prisoners (both those on death row and in the general population) and on prison staff.  A double execution is a heinous act of cruelty on the entire prison system which  was motivated by the unseemly rush to see executions carried out before courts could fully examine the defense arguments that these lethal chemicals might cause extreme pain to Clayton Lockett and other condemned prisoners.

Careless is not just bad, in a real sense, its evil.  You can do something badly for a lot of reasons (often conflicting interests or roles) but to do it carelessly is to do it without care.  When we say that carpenter was "careless" in building a stair case that collapsed, or a designer was careless in designing an automobile that crashed, what we really mean is that they did their task without caring about the humanity of those who would walk on the stairs or drive the car.  Governor Mary Fallin and Oklahoma officials rushed an execution without caring about the humanity of Clayton Lockett and Charles Warner.  In doing so they raised serious questions as to whether Oklahoma's death penalty inherently violates the Eighth Amendment which as been recently found to be animated by respect for human dignity.

...And then they botched the execution.

Austin Sarat shows in his just published (and incredibly timely) book Gruesome Spectacles: Botched Executions and America's Death Penalty (Stanford 2014) Oklahoma's botched execution may be textbook but it's not unique.  Botched executions are persistent theme in America's capital punishment history, largely fueled by our national combination of uncertain respect for human dignity, and misplaced technological optimism.

By the way, the intensity of Oklahoma's leaders in their pursuit of retributive justice should be put in context of their general lack of interest in governing.  The state ranks 44th in overall poverty, 43 in infant mortality, 47 for cancer mortality.


Allison said...

Thank you for this post. Readers, especially those familiar with your scholarly work and that of others in our field, may be interested to know that Mary Fallin is up for re-election this year. The political capital she would have gained in a state like Oklahoma from "serving justice" via execution may have something to do with the rush to execute these men.

Christina Dunigan said...

It would have been nice to see some outcry and review over practices after the botched execution of Sarah Brown. Two failed attempts at lethal injection left her blind, mentally disabled, mute, and unable to walk. It took her five years to die.

She had no trial, no appeal, no representation, no due process. Her crime was simply being in the wrong place at the wrong time. Her executioner was "hero" abortionist George Tiller.

Unknown said...

Arizona prison officials were willing to engage in a criminal conspiracy to obtain the chemicals necessary to carry out executions. The Arizona Department of Corrections instructed their lethal drugs supplier to submit false US Customs forms indicating that the drugs being imported were for veterinary use. See Kiefer, "Execution-drug import papers raise questions," Arizona Republic (Mar. 25, 2011)

Someone obtaining a benefit through the falsification of a document can be charged under Arizona law with Fraud Schemes, a Class Two Felony, which carries the most severe sentencing range short of murder.

In addition, President Obama's Food and Drug Administration has been actively cooperating with State prison systems to circumvent the Federal laws and regulations that govern the importation of drugs into the United States for use on humans. See Civil Complaint in Beatty, et al v. FDA, Case 1:11-cv-00289-RJL

These criminal conspiracies by politicians, prison officials, and executive branch officials make a mockery of the American criminal justice system and exposes the shibboleth that capital punishment in the U.S. is administered under the rule of law.