Last night, Oklahoma executed Clayton Lockett using a combination of drugs that had never before been used to kill a human being. Oklahoma refused to disclose the source of the drugs in the weeks leading up to the execution, dismissing attorneys’ concerns that using the untested drugs could cause an excruciatingly painful death. The Oklahoma Supreme Court issued a short-lived stay of execution, but then backed down after pressure from the Oklahoma Governor (who said she would disregard the Court’s stay order) and Oklahoma legislators (who threatened to impeach the justices).
The sequence of events leading to Lockett’s death has been described by a number of sources, including the New York Times. There is no dispute that Lockett died an agonizing death. He was executed using a three-drug combination that included midazolam, pancuronium bromide, and potassium choride. The first drug, midazolam, should have rendered him unconscious, but it failed to do so—either because it wasn’t administered in a high enough dose, or because it was not properly injected into one of his veins. The second drug, pancuronium bromide, should have paralyzed him so that he couldn’t move. Yet Lockett was still moving after more than 13 minutes had passed—and by some accounts, he was writhing in pain, grimacing, speaking, and struggling to sit up. The third drug, potassium chloride, causes a massive heart attack that experts say would cause unbearable pain if the prisoner is not sedated. In fact, Clayton Lockett died of a heart attack 43 minutes after the drugs were first injected into his body.
Attorneys around the country have fought to persuade the courts that they should not permit executions to go forward in the absence of evidence that lethal injection drugs are reliable and effective. Courts in Texas, Oklahoma, and Missouri, among other states, have rejected these arguments, largely because of a U.S. Supreme Court decision called Baze v. Rees. In Baze, the Supreme Court dismissed the petitioner’s argument that poorly trained prison staff could administer improper doses of the sedative that renders a prisoner unconscious. In essence, the Supreme Court held that an execution method that results in pain, “either by accident or as an inescapable consequence of death,” does not constitute cruel and unusual punishment. The Court shifted the burden to the prisoner to establish that “the State’s lethal injection protocol creates a demonstrated risk of severe pain.”
Baze must now be re-examined. The botched execution of Clayton Lockett calls for effective judicial oversight of state lethal injection protocols. Moreover, there can be little doubt that an execution procedure that results in prolonged agony for the prisoner is not only inhumane, it is torturous.
More than 20 years ago, in Ng v. Canada, the United Nations Human Rights Committee held that executing prisoners using the gas chamber constituted cruel, inhuman or degrading treatment or punishment. Their rationale: “asphyxiation may cause prolonged suffering and agony and does not result in death as swiftly as possible, as asphyxiation by cyanide gas may take over 10 minutes.” In light of the 43 minutes that it took Clayton Lockett to die, there can be little doubt that his execution violated international norms providing that the death penalty can only be carried out in a manner that causes “the least possible physical and mental suffering.”
Given the evidence that Oklahoma's actions violated the Torture Convention, President Obama should ensure that an impartial investigation is carried out under Article 12 of the Convention.
-- Sandra Babcock