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Cruel and Unusual

May 1, 2014

On August 22, 1987, Charles Warner raped and murdered his roommate’s year-old daughter, Adrianna Waller. On June 3, 1999, Clayton Lockett and two accomplices kidnapped Stephanie Neiman, Lockett shot her twice with a shotgun, and one of his accomplices buried her, still alive. Both Warner and Lockett were convicted and sentenced to death.

On February 26, 2014, attorneys for Lockett and Warner filed a civil lawsuit against the Oklahoma Department of Corrections in the Oklahoma District Court. The attorneys wanted to know who was supplying the drugs that would be used to execute their clients, and what those drugs would be. This is an issue because pharmaceutical companies are increasingly unwilling to allow their products to be used to kill people, even legally. As a result, death penalty states have been forced to improvise.

They lawsuit challenged the constitutionality of a 2011 Oklahoma law that provides: “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential.”

The Oklahoma Department of Correction contended that this law prevented not just the disclosure of the names of the people who supplied the drugs, but also the disclosure of the names of the drugs themselves. The inmates’ lawyers asked for an order striking down the 2011 law, and staying the inmates’ execution until the Oklahoma Department of Correction identified the drugs that would be used in the execution.

On March 11, 2014, the District Court dismissed the case, concluding that it did not have jurisdiction to stay an execution – the only court with that jurisdiction, the District Court said, is the Oklahoma Court of Criminal Appeals. The same day, the inmates’ lawyers appealed to the Oklahoma Supreme Court, which ruled on March 13, 2014, that the District Court did in fact have the jurisdiction not only to determine the constitutionality of the 2011 confidentiality law but also to issue a stay of execution of the law was found to be unconstitutional.

Both sides moved for summary judgment in the District Court, which ruled on March 26, 2014, that the 2011 law is unconstitutional. However, the District Court refused to stay the executions, finding that the statutory requirements for a stay were not satisfied. Specifically, the District Court held, the Court could stay an execution only in a case where a condemned inmate was challenging either the criminal conviction or the sentence of death. In this case, the inmates were challenging the state’s refusal to disclose the drugs that would be used to in the executions and where they came from.

Once again the inmates’ lawyers appealed to the Oklahoma Supreme Court and moved for an emergency stay of execution. Oklahoma’s attorney general argued that the motion for a stay should be transferred to the Oklahoma Court of Criminal Appeals, and, on April 17, 2014, the Supreme Court retained jurisdiction over the appeal from the District Court, but transferred the stay request to the Court of Criminal Appeals.

The next day, the Court of Criminal Appeals refused the case, asserting that it did not have jurisdiction. At the same time, the Oklahoma attorney general appealed to the Oklahoma Supreme Court from the District Court’s conclusion that the 2011 confidentiality law was unconstitutional.

The Oklahoma Supreme Court said the issue to be decided was “whether these appellants should have some access to an appellate tribunal for consideration of a stay of execution based upon the consideration of grave first impression constitutional issues regarding the manner in which their lives will be taken. More simply, the sole issue presented to this Court on this date is whether some court should hear their plea for a stay and ensure their constitutional right to access to the courts.” The issue of access to the courts came up because, without knowing the drugs that would be used to execute their clients, the lawyers could not assess or assert a claim that use of those drugs would inflict a torturous, and therefore unconstitutional, death.

The Supreme Court noted that the Court of Criminal Appeals had disobeyed a “constitutional directive of this Court,” which made the Court of Criminal Appeals’ action “invalid.” The result was that the only state appeals court with jurisdiction to decide a motion to stay an execution had refused to consider the motion. The Supreme Court invoked the common law “rule of necessity,” which basically says that if a thing must be done, then someone must do it – and, in this case, where the court that is supposed to do it refuses, then the Oklahoma Supreme Court must of necessity do it instead.

Although the Oklahoma Supreme Court relied on common law doctrine, there is a pretty good constitutional case to be made that where a state law provides for stays of execution, and vests a specific court with exclusive appellate jurisdiction to decide on stays, then an inmate seeking such a stay is constitutionally entitled to have his motion decided by that court.

In any event, the Oklahoma Supreme Court issued an emergency stay of execution, to allow time for briefing, argument and decision of the question on appeal – the constitutionality of the 2011 confidentiality law. The Court issued its stay on April 21, 2014, by vote of 5 – 4.  The four dissenters maintained that the Supreme Court had no jurisdiction over the case, and that the case should have been transferred in its entirety to the Court of Criminal Appeals.

On April 22, 2014, the Republican Governor of Oklahoma, Mary Fallin, signed an order stating that the Oklahoma Supreme Court’s “attempted stay of execution is outside the jurisdiction of that body,” and therefore the executions would proceed on April 29, 2014.

Then on April 23, 2014, the Oklahoma decided the full appeal. The Court concluded that the 2011 confidentiality law protected the confidentiality of individuals, and did not provide that the drugs to be used in the execution could not be named. But by then the state had disclosed which drugs would be used. The inmates and their lawyers could effectively pursue their claim that execution with the specified drugs would constitute cruel and unusual punishment, and therefore the Court unanimously rejected the District Court’s finding that the 2011 confidentiality law is unconstitutional.

Having denied the inmates’ appeal, the Court vacated the stay of execution it had issued on April 22, which the Governor had made plain on April 23 she intended to ignore.

On Tuesday evening, April 29, 2014, Clayton Lockett was taken to the execution room, strapped down, and injected with drugs that were intended to take his life. Members of the press, correction officials, and the family of Lockett’s victim were seated outside. At 6:23 p.m., the blinds were raised on the windows between the viewing areas and the execution room. Lockett was lying down, a sheet covering hs body to his shoulders.

The warden asked Lockett if he had any last words, and he said “no.” The warden ordered that the execution begin. Fifty milligrams of midazolam, a powerful sedative, were injected into each of Lockett’s arms, preparatory to injection of two other drugs that would stop Lockett’s breathing and heartbeat.

Lockett did not immediately lose consciousness, but may have after a few minutes. At 6:36 p.m., Lockett rolled his head, kicked his leg, and mumbled something. He began “writhing and bucking” as if trying to get up, and “grimacing, grunting and lifting his head and shoulders entirely up from the gurney”; he “appears to be in pain.” Lockett was mumbling, mostly unintelligibly to eyewitnesses. At 6:39 p.m., the blinds were lowered between the viewing areas and the execution room.

Reporters were told that the execution had been halted due to a “vein failure,” but at 7:06 p.m. Lockett was declared dead due to a massive heart attack. Governor Fallin stayed Charles Warner’s execution and ordered an investigation into the Lockett’s execution.

I am opposed to capital punishment in all cases. But even accepting the premises of capital punishment, Oklahoma’s execution of Clayton Lockett is troubling. The Oklahoma attorney general argued that the Court did not have jurisdiction to stay the executions, but the Court disagreed. The Oklahoma Supreme Court issued a considered judgment that the execution should be stayed while Lockett’s appellate claims were duly deliberated. Governor Fallin flatly disobeyed the Court’s order and scheduled executions anyway. The Court then responded by rejecting Lockett’s appeal on an “expedited” basis, without taking the customary briefs and argument.

The execution of Clayton Lockett will always be tainted by Governor Fallin’s contempt of court and the Court of Criminal Appeals’ disobedience of a superior court’s order. The Court’s decision on Lockett’s appeal will always be tainted by the suspicion that they acted as they did to save face in light of Governor Fallin’s disobedience, rather than on the merits of Lockett’s appeal.

And our country will be tainted by the barbarity of this execution, and of all executions, until we decide, as most of the world has decided, that capital punishment is incompatible with civilization.

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