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Could Oklahoma's Death Penalty Become the Lethal-Injection Alpha and Omega?

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DEATH PENALTY
AP

"The shot heard 'round the world."

Ralph Waldo Emerson used the phrase in his "Concord Hymn" to refer to the start of the American Revolution. Then it was used to describe the assassination of Archduke Franz Ferdinand, which launched the globe into its first world war. Could the newest "shot heard 'round the world" be the lethal injection of Oklahoma death-row inmate Clayton Lockett?

After all, his 45-minute death struggle has been denounced by the United Nations and will likely have a profound impact on the nature of capital punishment in the United States. By now, you probably know the grisly details:

Convicted murderer Clayton Lockett was sentenced to death by lethal injection. After the drugs were administered, a vein apparently ruptured. Although he had been declared "unconscious," Lockett grimaced, twitched, tried to speak, and even seemed to try to lift himself from the gurney. A physician stopped the execution, but Lockett died of an apparent heart attack some 45 minutes after the drugs were administered.

The irony of Lockett's seemingly "cruel and unusual" death is that the condemned man was one of two Oklahoma inmates who had sued the state saying that a policy of shrouding lethal-injection-drug suppliers in secrecy was a violation of their right to be free from cruel and unusual punishment. Without knowing the source of the drugs, they argued, there was no way to be certain that the drugs were mixed or stored properly to ensure a "humane" death.

What impact does Lockett's execution have on the Oklahoma criminal-justice system and the nature of the death penalty for the United States of America as a whole?

First, let's look at the chaos the Lockett case has created in the Oklahoma courts. Oklahoma is one of two states -- along with its southern neighbor, Texas -- to have two courts of last resort. The Oklahoma Supreme Court has jurisdiction over civil matters, and the Oklahoma Court of Criminal Appeals has jurisdiction over criminal matters. The attorneys for Lockett and Charles Warner tried a unique approach in appealing the state's death-penalty law on civil grounds rather than criminal grounds. This put the two courts at odds with one another.

In a published opinion, the Court of Criminal Appeals said it could not issue a stay of execution for the condemned men because the lawsuit was being heard in the Supreme Court. However, when the Supreme Court issued the stay of execution, an Oklahoma legislator called for the impeachment of five justices, saying that the court overstepped its authority in ruling on a criminal matter. With their jobs on the line, the state Supreme Court quickly upheld the Oklahoma death-penalty laws and lifted the stays of execution for Lockett and Warner.

It's definitely difficult to determine the integrity of either decision in such a situation. However, waiving the white flag would just be too easy. After Lockett's execution went so horribly wrong, Warner's attorneys asked for a six-month stay of execution. So, in a move that completely defies judicial logic, the Court of Criminal Appeals granted a 180-day stay in an unpublished opinion.

That's right. The same court that, earlier, had proclaimed (in a strongly worded published opinion, no doubt) that it absolutely did not have jurisdiction to grant Warner a stay of execution completely backtracked on its prior proclamation. After condemning the prior decision of the Oklahoma Supreme Court, which is vested under the Oklahoma Constitution with determining jurisdiction, for its decision to order the Court of Criminal Appeals to assume jurisdiction, the Court of Criminal Appeals placed its revised stance in an unpublished opinion.

The court said that this time it actually did have the authority to issue the stay based on the the all-encompassing rule of law: The state didn't object. I'm not exactly sure where that stipulation to jurisdiction is listed in the state constitution, but one thing seems clear: Oklahoma is going to have to settle the power struggle as far as its two high courts are concerned, regardless of the outcome of the lethal-injection fiasco. As an Oklahoma attorney, I can't help but feel that the controversy is a bit of an embarrassment to our judicial process.

Of course, the state's "constitutional crisis," as it was described by Oklahoma Attorney General Scott Pruitt, really only affects us folks within our little pan-shaped borders. Lockett's execution, on the other hand, has a far greater impact.

The death penalty has long been a controversial issue, and Lockett's botched execution is the cherry on top of a list of inmate deaths that seem to show that lethal injection isn't as painless or humane as described. The anti-death-penalty camp uses these painful deaths to illustrate capital punishment as a violation of the Eighth Amendment's guarantee of the right to be free from cruel and unusual punishment. On the other side of the fence, death-penalty supporters are scrambling to justify these results.

  • The United Nations says that Lockett's execution may be a violation of international human-rights law and has called upon the United States to issue a moratorium on the death penalty.
  • President Barack Obama called the execution "deeply troubling" and asked U.S. Attorney General Eric Holder to investigate.
  • Oklahoma Gov. Mary Fallin said of Lockett's death, "Justice was served. The people of Oklahoma have no blood on their hands."
  • Texas Gov. Rick Perry said the Oklahoma execution went "terribly wrong" but stopped short of calling it inhumane, and said that the incident would not justify ending the death penalty in the U.S.
  • Former Oklahoma State Penitentiary Warden Randall Workman, who retired in 2012, said the execution was "untimely" but not botched; after all, Lockett was sentenced to death, he was injected with lethal drugs, and he died. Workman said he "wouldn't change a thing" about Oklahoma's death-penalty procedure and blamed Lockett for creating the conditions that led to the blown vein and his difficult death.
  • The Constitution Project's Death Penalty Committee, a bipartisan panel of criminal-justice experts, called upon the states to stop using a lethal-injection "cocktail," saying that a multidrug protocol "create[s] a high risk of improper administration."

What should become of the death penalty in the United States? Should it be abolished? Should lethal-injection protocols be modified and standardized? Are there more humane deaths than those inflicted by lethal injection?

For example, in this HuffPost blog post, the author argues that lethal injection is inhumane and that the firing squad would be a more humane death for those criminals sentenced to die for their crimes. Others call for bringing back hanging or the electric chair -- or, for that matter, the guillotine. Remember, though, that lethal injection was intended to be more humane than its predecessors, and many states, including Oklahoma, still have alternative means of execution on the books, but they have chosen to forgo them in favor of the "painless" and "humane" lethal injection.

The sad fact is that we will never know for sure if an execution is "humane." No person is ever going to come back from the grave and say, "Hell, that wasn't so bad! I barely felt a thing!" But is "humane" supposed to be synonymous with "painless"? Even though I oppose the death penalty, I have to agree that the United States Constitution only calls for protection from cruel and unusual punishment; there is nothing in the text about abstaining from punishment altogether. However, I am annoyed at the ignorance of statements akin to "We should only show that murderer as much mercy as he showed his victim" or calls for inmates to suffer to the same extent as their victims did. That's ridiculous.

We as a society should hold ourselves to a higher standard than those we condemn; after all, that is what supposedly separates us from those we put to death, is it not? The fact that we can rationalize and use logical thought as opposed to acting on pure hatred and emotion should be one thing that differentiates the general populace from the "evil" that we hope to stamp out through the death penalty. "We" are supposed to be better than "they."

Regardless, Oklahoma could possibly be the beginning and the end of the lethal-injection debate. In 1977 Oklahoma was the first state to approve lethal injection in the United States, and the other death-penalty states quickly followed suit. Imagine the irony if the state that gave birth to lethal injection as a method of execution is also the state that brings about its demise.

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