Oklahoma execution exposes death penalty: Cruel but usual

The heart attack that killed death row prisoner Clayton Lockett on April 29 after the state of Oklahoma tried to execute him has exposed the death penalty to the world for what it has become: a live experiment in how to kill people while making it appear painless and therefore palatable to the public.

The execution began 23 minutes late, at 6:23 p.m., at the Oklahoma State Penitentiary in McAlester. At 6:28 Lockett was injected with 50 milligrams of midazolam. A few minutes later, a doctor checked Lockett, and the warden told observers he was unconscious.

But after another few minutes, at 6:37 p.m., Lockett’s body “starts writhing and bucking and it looks like he’s trying to get up. Both arms are strapped down and several straps secure his body to the gurney. He utters another unintelligible statement. … At 6:38 p.m. Lockett is grimacing, grunting and lifting his head and shoulders entirely up from the gurney. He begins rolling his head from side to side. He again mumbles something we can’t understand, except for the word ‘man.’ He lifts his head and shoulders off the gurney several times, as if he’s trying to sit up. He appears to be in pain,” chronicled Ziva Branstetter, editor of Tulsa World Enterprise, one of 12 media witnesses to the botched execution.

Lockett lived for 43 minutes after being administered the first drug, CNN affiliate KFOR reported. He got out the words “man,” “I’m not” and “something’s wrong,” KFOR reporter Courtney Francisco said.

Shortly later the curtains were closed to witnesses, at 6:50 p.m., the director of the Oklahoma Department of Corrections told witnesses to exit, as the execution had been stopped and a stay of execution had been issued for Charles Warner, who was to be the second man executed that evening.

Lockett was not executed after all, but was pronounced dead at 7:06 p.m., having suffered a massive heart attack.

Execution drugs shrouded in secrecy

At issue in Oklahoma, Texas and other states is the secrecy imposed on the sources of lethal drugs, which make it impossible for defendants to know whether untested combinations may cause suffering. Cruel and unusual punishment is forbidden by the 8th Amendment of the Constitution. Oklahoma was using an untested combination of drugs, and officials have refused to reveal the source.

In 2011, Hospira, the sole manufacturer of a key lethal-injection drug, sodium thiopental, announced that it would no longer sell it. That led to a cascade of shortages as states began running out of that and other drugs, mainly because of the European Union’s opposition to the death penalty.

The states that still execute in the U.S. have been forced to find new drug protocols after European-based manufacturers banned U.S. prisons from using their drugs in executions. Among them is Danish-based Lundbeck, which manufactures pentobarbital. When execution drug supplies run out, states have turned to what are called compounding pharmacies which create whatever drug is required for that state’s execution protocol.

The next scheduled execution is Robert Campbell in Texas on May 13.

Texas lawyers are preparing new litigation challenging the state’s refusal to provide any public information about where and how it is obtaining its lethal injection drugs.

Texas’s current death protocol lists pentobarbital as its lethal drug of choice, and it is believed that the prison system has obtained supplies of this barbiturate from domestic compounding pharmacies that are not subject to federal regulations. The state also has supplies of midazolam, the sedative used as the first of three drugs in Oklahoma’s attempted execution of Lockett. The state has refused to say where it is buying these drugs and whether the drug’s strength or purity has been tested.

Court cases challenge execution protocols

Maurie Levin, one of a team of lawyers working on the new Texas litigation, attempted a case earlier this year in federal court on behalf of several Texas prisoners facing execution, but the court upheld Texas’ secrecy.

Following Lockett’s suffering in Texas, Levin said that “if nothing else, Mr. Lockett’s execution in Oklahoma makes clear that you can’t simply take the word of the executioner that everything will be okay. Access to information is necessary to be able to determine whether we are at risk of an execution like what happened last night.” (Guardian UK, April 30)

University of Houston law professor David Dow, who heads that school’s Texas Innocence Network, said, “The debacle in Oklahoma reveals the consequences of allowing execution protocols to remain secret. The responsibility for inflicting this torture is widely shared by prosecutors, prison officials, judges and politicians, including the governor and attorney general in Oklahoma.” (LA Times, April 30)

Twice this year, the U.S. Supreme Court has denied appeals seeking to block an execution on the grounds the condemned inmate and his lawyer had a right to know more about the drugs to be used in a lethal injection. But in late February, three justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — dissented in a Missouri case and said they would have stopped the execution.

Lawyers said they feared their client would suffer searing pain from chemicals if he was not properly sedated. They pointed to a series of recent executions that went badly, according to observers.

Torture: ‘I feel my whole body burning’

On Jan. 9, an Oklahoma prisoner, Michael Lee Wilson, reportedly said, “I feel my whole body burning” after he was injected with a compounded pentobarbital. (The Nation, Jan. 10) On Jan. 16, an Ohio prisoner, Dennis McGuire, took more than 20 minutes to die, and observers said he was struggling and gasping for air.

After his execution, McGuire’s family filed a lawsuit seeking an injunction on the execution protocol the state used. “The lawsuit alleges that when Mr. McGuire’s Ohio execution was carried out, he did endure frequent episodes of air hunger and suffocation, as predicted,” the family’s attorney, Richard Schulte, said in a statement. “Following administration of the execution protocol, the decedent experienced ‘repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain,’ and ‘looked and sounded as though he was suffocating.’ This continued for 19 minutes.” (CNN, May 1)

With legal battles and uncertainty about getting the drugs, some states have considered reviving options such as the firing squad (Wyoming), the gas chamber (Missouri) and the electric chair (Virginia).

Support for death penalty at new lows

Lawyers for Michael Yowell, who was executed in Texas last October, alleged in a court document that in an effort to trick a compounding pharmacy into supplying them with pentobarbital, Texas officials placed an order that was to be delivered to the address of a prison hospital that had been closed for 30 years. When the pharmacy discovered the drugs were to be used for lethal injections, the order was cancelled.

Support for the death penalty has plummeted to new lows in the U.S. in the last 10 years. About half of the people favor a life sentence without parole and half favor execution. Executions are down and also death sentences are down.

New research published April 28 — the day before Lockett’s death — in the Proceedings of the National Academy of Sciences suggests that at least 4.1 percent of all defendants sentenced to death in the U.S. are innocent, according to the peer-reviewed study by University of Michigan School of Law professor Samuel Gross in collaboration with Michigan State University law professor Barbara O’Brien and biostatisticians Chen Hu and Edward  H. Kennedy.

Maya Foa, with the British organization Reprieve’s Death Penalty team, said, “[Lockett’s] execution demonstrates that without transparency, there is a far higher risk of causing extreme suffering to the prisoner. States need to stop conducting secretive, experimental executions. The contortions which executioners are going through to try to present these killings as constitutional demonstrates the fundamental contradiction in the premise of the so-called ‘humane execution’.

“It is also a clear demonstration of why no responsible pharmaceutical firm or pharmacy wants to get involved in selling drugs to executioners. How many more of these horrifying events will it take before the authorities in Oklahoma and elsewhere get the message?” (The Independent, May 5)

From President Barack Obama to the United Nations, from the ACLU to the NAACP, criticism and questions abound regarding the botched Oklahoma execution. There have been over 1,000 news articles, political commentaries and columns about it. Calls for a moratorium on executions have increased.

Death row prisoner speaks

Texas death row prisoner Harvey Earvin told Workers World that executions continue because those tried for capital murder are portrayed as “the other.”

“It is made easy for a jury to convict a poor, often uneducated or unsophisticated person, a person disproportionately African American or Latino, by creating a monster, a person not deserving to breathe the same air as ‘us.’ We are seen as ‘the other,’ as someone so unlike a so-called normal person, that a juror is doing society a favor by eliminating us.

“The U.S. government did that to Iraq’s Saddam Hussein and to Libya’s Muammar Gadhafi. And states demonize poor people in the criminal justice system the same way. That way when we are executed, it is not a big deal to kill us.”   

The Texas Death Penalty Abolition Movement has issued a statement calling for an end to all executions in the U.S., which reads in part: “The system of capital punishment is broken and cannot be repaired. Innocent people are executed. People with childlike reasoning abilities are executed. Non-citizens are executed without ever being given their rights under international law. People of color are disproportionately executed. Mentally ill people are executed.

“It doesn’t matter if executions are carried out by a firing squad or a guillotine. It still isn’t acceptable even if they are painless. The fact is that capital punishment is reserved for the working class and particularly African Americans and Latinos. The system is broken and must be shut down now.

“We are hosting the 15th Annual March to Abolish the Death Penalty in Houston on Oct. 25 and we hope this march and rally will be the last one needed. With public support declining, with new information about the large number of innocents sentenced to death, with so many questions about the validity of drugs coming from unknown sources, we demand this racist and barbaric practice end now. The U.S. Supreme Court should recognize the evolving standards of decency regarding executions and outlaw capital punishment for good.”

Gloria Rubac of Houston is a leading activist against the death penalty.