Botched Oklahoma execution reignites death penalty debate in Missouri

05/01/2014 11:06 AM

05/01/2014 11:06 AM

Oklahoma officials scrambled Wednesday to limit fallout from a botched execution that reignited a national debate over lethal injections.

Oklahoma Gov. Mary Fallin announced that she had ordered a review of the state’s new execution protocols following widespread criticism of how Clayton Lockett died Tuesday night.

After prison officials had declared Lockett, 38, unconscious, he began to breathe heavily, writhe, clench his teeth and struggle to lift his head off the gurney’s pillow, witnesses said.

Prison officials drew the execution chamber’s curtain, blocking observers’ view. Lockett died of a heart attack afterward.

Prison officials initially blamed a ruptured vein for problems with the execution, but physicians conducted an autopsy on Lockett’s body Wednesday, news reports said.

For Missouri death penalty opponents, Tuesday night’s episode was both their worst fear and perhaps their greatest hope, even as officials issued assurances that the state’s procedures are sound.

The scene in McAlester, Oklahoma, provided a graphic example of what could go wrong and was entirely predictable, lawyers said Wednesday.

“We might want to say it was shocking, but it’s entirely consistent with what people like me have been arguing for months and months and years,” said Joe Luby, an attorney with the Death Penalty Litigation Clinic in Kansas City. “It really goes to show the hazards of having a state being allowed to put someone to death without telling how they will do it.”

Luby said he hopes judges around the country will become more skeptical of the secrecy that state officials place around their execution procedures.

Fallin announced Wednesday that an independent pathologist would determine Lockett’s cause of death. She appointed her public safety commissioner, Michael Thompson, to lead the overall probe, which she described as an independent review.

Fallin appointed Thompson to her Cabinet in January 2011.

A stay for Charles Warner, who had been scheduled to die two hours after Lockett, was put on hold until May 13. Authorities postponed Warner’s execution soon after Lockett’s death.

Criticism of the episode came from as far away as the White House, where spokesman Jay Carney said the execution attempt “fell below” humane standards.

Lockett was convicted of shooting a 19-year-old woman in 1999 and watching as two accomplices buried her alive.

After years of using the same combination of drugs to execute prisoners, states have faced shortages because European manufacturers refused to supply their products for executions.

As a result, states like Oklahoma and Missouri have had to find alternative lethal injection chemicals in recent years. Many have turned to compounding pharmacies, which are largely unregulated. States have kept those drug sources secret.

One judge has accused states of hiding their execution drugs and procedures behind a “hangman’s hood.”

Attorneys for death row inmates say that secrecy prevents them from knowing if the drugs are properly manufactured and if they pose a risk of inflicting pain on a condemned prisoner in violation of the constitutional protection against cruel and unusual punishment.

In response to what happened in Oklahoma, a spokeswoman for Missouri Gov. Jay Nixon noted in a written statement that Missouri has a different lethal injection protocol and uses a different drug than Oklahoma.

“This protocol has been upheld by the courts and used by the Department of Corrections to fulfill its obligation under the law and carry out these sentences for the most heinous of crimes in an efficient, effective and humane manner,” according to the statement. “The governor continues to support the ultimate punishment imposed by juries and courts for the most merciless and violent crimes.”

But Jeffrey Mittman, executive director of the American Civil Liberties Union of Missouri, said Missouri’s secrecy about the source of its lethal injection drugs is “eerily similar” to the situation in Oklahoma.

“Missouri needs to take steps to ensure that what happened there doesn’t happen here, as it very well could,” Mittman said.

A spokeswoman for the Missouri attorney general’s office suggested the problems evident in Oklahoma are unlikely here.

A board-certified anesthesiologist and nurse are part of Missouri’s execution team, said Nanci Gonder, press secretary for Attorney General Chris Koster. They establish the intravenous line that is used to administer a single chemical, pentobarbital, which is not part of the cocktail used in Oklahoma, Gonder said.

Sean O’Brien, a law professor at the University of Missouri-Kansas City and veteran capital punishment litigator, said government secrecy is never good policy.

“Government should operate in the light of day, particularly when it comes to something with the gravity of the ritual of taking of a human life,” he said.

Kansas City attorney Cheryl Pilate is trying to pierce that secrecy. Her client, Russell Bucklew, is scheduled to be executed in Missouri on May 21.

Pilate called Wednesday for an immediate suspension of executions in Missouri, saying authorities there need to demonstrate that they know what they’re doing and have learned the lessons of the botched Oklahoma execution attempt.

“Each state has its own little (execution) cocktail,” Pilate said. “But we are experimenting on human beings. It’s an atrocity and human rights violation.”

Bucklew has a medical condition, congenital cavernous hemangioma, in his head and throat that could prevent drugs from properly circulating and lead to an “excruciating” and “prolonged” execution, a doctor who has examined Bucklew’s medical records wrote in a court filing.

Pilate plans to raise new questions about her client’s medical condition soon.

“I think this botched execution hopefully has shifted the conversation,” Pilate said.

Robert Blecker, a professor at New York Law School and death penalty expert who supports capital punishment, hopes the same thing, but for different reasons.

Blecker, author of the book “The Death of Punishment,” thinks lethal injection should be done away with. He wants to see a method of execution, such as the firing squad, that is less like a medical procedure.

“Let’s face what we’re doing,” he said.

Blecker said lethal injection was designed by non-experts and has been implemented in a haphazard way.

“It was ill-conceived from the start,” he said.

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