Last week, Oklahoma Governor Mary Fallin nearly caused a constitutional crisis by ordering the execution of Clayton Lockett even after the state Supreme Court had stayed it. Instead, the Court relented, and Lockett suffered perhaps the worst botched execution in the nation’s history. Afterwards, Fallin asked the Oklahoma Department of Corrections to review the lethal injection procedure. If previous reviews by other states are any indication, however, Fallin’s effort will be a complete sham.
“You can’t charge an agency that’s been responsible for a problem to do an honest analysis of the problem and come up with a way to fix it,” says Jen Moreno, staff attorney at Berkeley Law, of the DOC-led evaluation.
Even Oklahoma corrections chief Robert Patton, who is partially in charge of conducting the investigation, told the New York Times that the review would “be perceived as more credible if conducted by an external entity.” The review has three focuses: Lockett’s cause of death, as determined by an independent pathologist in Texas; whether or not Lockett’s executioners followed the proper protocol; and how the state can change its protocol to make it safer.
“There has never been an objective study starting with a blank sheet of paper about how an execution might be done right,” says Eric Freedman, a constitutional rights professor at Hofstra University Law School. “In the particular case of Oklahoma, given Mr. Patton’s presence in his official capacity at the execution, he’s being asked to evaluate himself.”
Death penalty review panels are something of a ritual part of capital punishment in the United States. In Florida, Tennessee, and California, evaluations by and large did little more than reestablish the old protocol using the same injection formulas with some minimal procedural amendments. No state wants to be found in violation of the Constitution, so motivation is high for states to legitimize their current policies by blaming botched executions on one-time problems or inadequate training—the types of thing that can be examined, quickly improved upon, and will never happen again.
After the botched execution of Angel Diaz in Florida in December 2006, Governor Jeb Bush convened a commission on the administration of lethal injection. A few months later, the New York Times called the final report “tentative and indirect.” Though the report did put forth several important procedural recommendations—establishing two-way audio communication between the prison’s chemical room and its death chamber, developing proper documentation protocol, ensuring syringes containing chemicals were labeled correctly, and creating a better structure of command—it fell short of making a strong recommendation for an alternative drug formula. At the end of the report, one of the commission’s “miscellaneous suggestions” was that the Florida DOC “explore other more recently developed chemicals” to possibly replace the three-drug cocktail it had been using.
What’s more, last October Florida altered the protocol again, substituting the untested drug midazolam hydrochloride for the drug pentobarbital, which has become increasingly scarce since its manufacturer refused to sell it in death penalty states. “Florida learned absolutely nothing,” said Freedman. “They conducted no visible independent study. There was no paper generated. It would appear, for all the public knows, that they looked around at their pharmacy and said, ‘Oh, well, midazolam, there’s lots of that, let’s use some of that.’” After using the untested drug to kill William Happ, the AP reported the inmate remained conscious longer and made more body movements after he lost consciousness than those executed using the old formula.
In 2007, in an effort to placate the courts regarding the state's non-transparent lethal injection protocol, Tennessee's governor ordered a 90-day moratorium during which new execution protocols were drafted. Less than an hour of public hearings were conducted, and no medical personnel spoke at the hearings. The new protocol used the same three-drug method as the old protocol, which opponents argue is inhumane and unconstitutional. Almost immediately after the moratorium was lifted, the state executed an inmate before his lawyers had a chance to read through the new protocol. In the fall of 2007, a Tennessee district court found the revised protocol unconstitutional.
For a lethal injection review the same year, the California Department of Corrections and Rehabilitations hired John McAuliffe as a member of the four-person team that would create recommendations for rewriting the state’s lethal injection protocol after a U.S. district court judge blocked the execution of an inmate and put a moratorium on the death penalty because of complaints about the constitutionality of the state’s lethal injection procedure. McAuliffe, a retired corrections counselor, was chosen because of his medical background, experience working at San Quentin State Prison, and knowledge of legal issues involving the CDCR. During a deposition, McAuliffe testified that he recommended to CDCR officials that they switch from a three-drug cocktail to a one-drug protocol, based on “all the research” and “prior testimony across the United States.” The review ultimately recommended and Governor Arnold Schwarzenegger ultimately approved the use of the three-drug cocktail instead. Since the new protocol still not did conform to the court’s demands, California’s death penalty moratorium remains to this day and is unlikely to resume until 2016.
“This is not rocket science,” said Freedman. “An honest review would build on both mistakes that have been made in the past and easily available medical knowledge... [It] would let a governor get half a dozen scientifically trained professionals together in a room, and they could put this together fairly easily.”
A panel from the Constitution Project, a think tank in DC that analyzes legal issues, released a report this week finding that a better form of lethal injection would indeed be a massive overdose of one drug, either a single anesthetic or barbiturate. While it seems possible that Oklahoma will at some point switch to one-drug lethal injection, the problems with Lockett’s execution run much deeper: tasering the inmate on the day of his execution, failure to have enough drugs on hand, and a chaotic and unorganized death chamber. And the state’s biggest problem goes beyond execution protocol; it’s the extreme secrecy that surrounds the entire process. Right now, a secrecy clause in Oklahoma’s death penalty statutes protects the source and the nature of the drugs used in executions, making it nearly impossible for death row inmates’ lawyers to make a specific legal challenge against the procedure, or even to confirm that it will be conducted humanely. “Had Oklahoma been transparent about what it was doing and where it was getting these drugs, I don’t think this botch would ever have happened,” death penalty expert and Fordham Law professor Deborah Denno told me.
Death penalty review panels are convened to help states save face after botched executions or problematic study findings. Until a death penalty state calls for a true third-party examination of its procedures, U.S. states will continue to sometimes tortures their inmates to death.