This has exposed yet another instance where the “machinery of death,” to use Justice Harry Blackmun’s immortal phrase, is incapable of running with the sort of precision necessary to work a capital regime. What happened [Tuesday] night to Clayton Lockett surely won’t convince lawmakers in Oklahoma or Texas or Missouri or Louisiana or Alabama to end their experiment with the death penalty. But if what happened last night in Oklahoma doesn’t cause our nation’s judges to stop the cycle of secrecy over lethal injections, it will be a scandal.
Indeed, Lockett now is a symbol of feckless judicial review by the federal courts, including the United States Supreme Court. The justices in Washington have had countless opportunities in the past year to stop the madness caused by the current generation of lethal-injection secrecy. They long ago could have and should have accepted one of those cases for review to establish standards that would require states like Oklahoma to share basic information about the drugs used to kill prisoners. What happened to Clayton Lockett last night is on them, too.
Sam Kleiner also hopes the courts will take action:
Today, there are a number of cases progressing through the federal courts that are challenging the secrecy laws surrounding lethal injections. Ultimately, the courts and potentially the Supreme Court itself will have to determine whether such secrecy violates the Constitution. The Court held in 2002 that the ban on cruel and unusual punishment “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” While there may be a legitimate interest in protecting the suppliers of these drugs, our interest in protecting the integrity of our society’s most severe punishment is far greater.
Lauren Galik reviews the series of events leading up to Lockett’s execution:
On April 21, the Oklahoma Supreme Court stayed the executions of Lockett and Warner, which were scheduled to take place on April 22 and April 29, so that the justices could evaluate the legality of Oklahoma’s secrecy law.
In an unprecedented move, Gov. Mary Fallin proclaimed on April 22 that Oklahoma’s executive branch would not honor the state Supreme Court’s stays of execution, and issued an executive order that granted a seven-day stay of execution for Clayton Lockett.
Even more shocking, a Republican state representative, Mike Christian, introduced impeachment proceedings on April 23 against the five state Oklahoma Supreme Court justices who had voted for the stays of execution, stating that the justices had used “unsupportable arguments regarding constitutional rights.”
On April 24, the Oklahoma Supreme Court caved to political pressure, and declared that the state’s injection secrecy law was constitutional, allowing the botched execution to proceed on April 29 as Governor Fallin ordered.
Lithwick’s reaction to the story:
The death penalty is still legal in America, and to the extent you want to debate that, you can and should. But torturing prisoners is not legal, and when state actors fall over one another to secretly experiment with new drugs, that’s just a sin. State courts tasked with being careful and deliberate shouldn’t cave to threats or blackmail. Bert Brandenburg, executive director of Justice at Stake, a nonpartisan campaign working to keep our courts fair and impartial, says the real lesson from Oklahoma Tuesday night is this: “Political tampering with the courts and bullying of judges fed a fever that resulted in a state torturing one of its prisoners to death.”
Beutler’s bottom line:
Even if you grant the assumption, which I don’t share, that an intentional, scheduled killing can be done in a non-torturous way, if something (i.e. intentional, scheduled killing) requires a zero percent error rate in order to not be torturous, probably you just shouldn’t do it. But you certainly shouldn’t be hungry to do it.
Though hardly hungry, Matt K. Lewis still supports the death penalty:
You really can’t take someone like Clayton Lockett and reform him — or, at least, the odds of doing so are unfathomable. This wasn’t a crime of passion. He didn’t walk into his house, see his wife in bed with another man, fly into a rage, kill him, and then immediately feel remorse. He shot a 19-year-old woman and then watched his friends bury her alive. Try to reform that.
… [A]s the son of a prison guard from Maryland, let me assure you: Inmates who have no hope of earning an early release also have no incentive not to harm or kill correctional officers or other inmates. And solitary confinement is arguably a crueler and more unusual form of a punishment than the death penalty. And there’s also this: While capital punishment may not be a deterrent (the infrequency of its use almost guarantees this), the recidivism rate is astonishingly low. I mean, there are very few repeat offenders.
So yes, we ought to make sure we get to the bottom of what went wrong with this lethal injection. But no, we shouldn’t do too much hand-wringing and pearl-clutching along the way. At the end of the day, the death penalty should be safe, legal, rare — and utterly efficient.