The Lockett Effect
‘Nobody wants to be the next Oklahoma. They’ve managed to lower the bar even lower on the death penalty.’
BY many accounts, Oklahoma’s execution of Clayton Lockett on Tuesday was a medical, legal and moral fiasco.
But one thing went as planned: Lockett’s family, at his insistence, wasn’t there to see it.
“He refused that they come because he didn’t want it to be their last vision of him,” said Colorado Assistant Federal Public Defender Dean Sanderford, one of Lockett’s lawyers.
“And thank god. Because it was the most awful thing I’ve ever seen. It was horrific, just horrific to watch.”
Lockett, a 38-year-old murder convict, was injected with a three-drug combination whose dosage had not yet been tested for its effectiveness in carrying out a quick, relatively painless death.
Witnesses say he appeared to be unconscious for several minutes after the first injection, but then gasped, shook uncontrollably and attempted to sit up. The warden called a halt to the execution when it became clear the procedure wasn’t working as intended – and as required under the 8th Amendment guarantee against cruel and unusual punishment. A vein ruptured, Lockett had a heart attack and he died 43 minutes after the process began.
The botched procedure is expected to result in what some watchdogs already are calling “the Lockett Effect.”
“With something this disastrous, I suspect there will be malpractice suits, wrongful death suits, all sorts of investigations into what happened and lots of changes to try to restore credibility in the process,” said Richard Dieter, executive director of the Death Penalty Information Center.
“Nobody wants to be the next Oklahoma. They’ve managed to lower the bar even lower on the death penalty.”
The Obama administration weighed in on Lockett’s death – the latest and worst in a string of botched executions nationally.
“We have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely — and I think everyone would recognize that this case fell short of that standard,” said White House spokesman Jay Carney.
The most direct factor in “the Lockett Effect” is what will happen to Lockett’s fellow death row inmate, Charles Warner, 46, who was scheduled to be executed two hours after Lockett on Tuesday evening. In response to the Lockett debacle, Gov. Mary Fallin immediately stayed Warner’s execution for 14 days.
Fallin last week derided the state Supreme Court for deciding to delay Lockett and Warner’s executions -– a ruling justices later, under pressure from the executive and legislative branches, reversed. Today, Fallin called for a review of Oklahoma’s death penalty protocols, noting at the beginning and end of her statement that Lockett had committed a horrible crime and that he had been tried and sentenced fairly and legally.
Warner’s lawyer, Colorado Assistant Federal Public Defender Madeline Cohen, is calling for an independent autopsy of Lockett. She also is demanding that “this so-called investigation that the Governor is asking for be truly independent.”
“There should no be executions in Oklahoma until we know what happened last night and until there’s full transparency about the process and the drugs that were used,” Cohen told The Independent after returning to Denver from Oklahoma.
Dieter, based in DC, said Warner’s two-week stay likely will be extended indefinitely.
“Oklahoma won’t be executing anyone two weeks from now. No state, I imagine, will be moving forward any time soon.”
Plans for the executions were problematic long before Lockett was strapped to the gurney Tuesday. As first reported by The Colorado Independent, Oklahoma officials had long been scrambling to find euthanasia drugs to execute the two death row inmates.
The manufacturer of pentobarbital — the anesthesia used first in the “three-drug cocktail” commonly employed as the quickest, most painless way to execute prisoners — has pulled the drug from the market for use in capital punishment. That left Oklahoma and other states on the hunt for replacement drugs to carry out executions.
Oklahoma state attorneys quipped about the drug shortage, joking that they would trade information with Texas officials about how to procure lethal injections in exchange for tickets to a Texas-Oklahoma university football game. In an email to a colleague, Oklahoma Assistant Attorney General Seth Branham dubbed the group of Oklahoma officials who had been working to procure lethal injection drugs “Team Pentobarbital.” The colleague, fellow Assistant Attorney General Stephen J. Krise, joked that for Oklahoma’s assistance, Texas’s football team should intentionally lose several games.
“So, I propose we help if TX promises to take a dive in the OU-TX game for the next 4 years,” Krise wrote, documents show.
Records also show that in at least nine executions, Oklahoma’s unnamed executioners were disposing unused euthanasia drugs by injecting them into the corpses of prisoners who were already dead, The Independent reported.
Without access to pentobarbital manufactured by a regulated pharmaceutical company, Oklahoma used petty cash to pay for euthanasia drugs on the gray market. Officials cited the state’s controversial death penalty secrecy law in refusing to disclose details about where they were procuring lethal injection drugs and if they were purchasing them from compounding pharmacies – typically mom and pop shops that concoct doses for special order virtually unregulated.
Lockett and Warners’ lawyers challenged the secrecy law in a lawsuit. They also challenged Oklahoma’s decision to use what they called an experimental three-drug cocktail that substitutes midazolam for pentobarbital as a sedative. Midazolam had been used in executions in Florida, but at a dosage that was more than four times greater than Oklahoma’s. In January, an Ohio execution carried out with midazolam lasted for nearly 25 minutes as the condemned convict gasped for air and struggled before dying.
Both Lockett’s and Warners’ executions were postponed as their legal objections to the protocol and the state’s secrecy law wended through the courts. When they ultimately lost their legal battles, they were quickly scheduled for a double execution – the state’s first since 1937.
Lockett was convicted of shooting and burying alive a 19-year-old woman in 1999. Warner was sentenced to death for raping and killing a baby girl in 1997.
Lockett’s execution was slated first on Tuesday.
He was injected with midazolam, and, minutes later, pronounced unconscious by a prison official, witnesses to the execution say. About 13 minutes later, Lockett was clearly conscious as he writhed in pain and tried to sit up. Witnesses reported that he groaned “man” and mumbled “something’s wrong.” As it became clear that the procedure had gone awry, the warden halted the execution and a guard closed a curtain in the execution chamber, preventing lawyers and journalists and other witnesses from seeing what Lockett endured and what actions prison authorities might have taken in the ensuing 20-plus minutes before he died.
Like the details of Oklahoma’s drug buys, the execution itself was shrouded in secrecy.
“This process is more than a little rotten,” Cohen said. “What went down last week with the Supreme Court decision to stay the execution to allow full consideration of the constitutional issues followed by incredible bullying by the Governor and the legislature was disturbing and disheartening.
“For that to have gone forward into this terrible, torturous execution, it’s a nightmare.”
A national group of former prison officials and administrators today called for a probe into Lockett’s execution.
“Correctional officers should not have to prepare to witness the horror of a botched execution such as that endured by Mr. Lockett and we can only imagine the emotional toll of this event on the professionals involved in the procedure,” members of the Constitution Project -– a bipartisan think tank watchdogging legal issues around the death penalty -– wrote in a statement.
“No individual should be asked to carry out an execution using experimental drugs and dosages or without proper training and medical expertise,” continued the statement, signed by officials including Colorado’s former corrections chief Chase Riveland. “And no further executions should be carried out in Oklahoma until Mr. Lockett’s death is fully investigated and all the facts are known.”
The “newsroom” and “public information updates” on Oklahoma’s Department of Corrections website make no mention of the Lockett snafu. Spokesman Jerry Massie told The Independent “we’re not commenting on it right now.”
Lockett’s family couldn’t be reached for comment.
Said Sanderford: “I can just only imagine what they’re going through.”
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