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Ann Neumann: Cruel and the Usual

June 5, 2014

Clayton Lockett’s death exposed the secrecy that corrections departments across the country have imposed on executions—and shows us how unreliable and painful lethal injection really is.

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Image from Flickr via A Yee

By Ann Neumann

Fifty years ago this summer, Gwynne Owen Evans and Peter Anthony Allen were hanged at two separate prisons at the same time: 8 pm on August 13, 1964. The men, both of less-than-average intelligence, were captured only 48 hours after killing an acquaintance for money. They were sentenced and hanged five months later. Other than being a double execution, their deaths aren’t particularly noteworthy, but their names are landmarks in the history of capital punishment today. They were the last men to ever be executed in Great Britain.

Leading up to the 1960s groups openly protested the killing of criminals. In 1965, after a 20-year campaign, Labour MP Sydney Silverman finally succeeded in passing a bill that abolished the death penalty. While other crimes could officially qualify prisoners for execution until 1998, capital punishment was never again used after Evans and Allen’s hangings.

We offer such killings to victims’ families as a blind compassion, an ineffective but necessary human sacrifice to grief.

A double execution also marked the end of capital punishment in Canada. Arthur Lucas and Ronald Turpin were hanged at 12 am on December 11, 1962, for unrelated murders. Both were represented by the same young lawyer, Ross Mackay, who was unable to prevent their death sentences despite hasty trials and suspect evidence. As protesters marched outside Dom Jail before the execution, Turpin told a prison chaplain, “If our dying means capital punishment in this country will be abolished for good, we will not have died in vain.” The double hanging was a bloody affair that immediately killed Turpin but left Lucas “hanging just by the sinews of the neck.” Five years later, the death penalty was officially abolished in Canada.

Fascination with executions has long been a dark lurch in America’s collective conscience. We look, we can’t look. We tell ourselves we’d want the killers of our loved ones to be killed—so we offer such killings to victims’ families as a blind compassion, an ineffective but necessary human sacrifice to grief. Without proof or understanding, we call execution a deterrent, a vindication, the ultimate ars morendi with Justice. If execution fixes our gaze, a double execution claims our savage double-take. We are held by the spectacle of the state so blatantly enforcing God’s retribution.

And yet, America’s taste for executions is slowly but substantially waning. Thirty-two states still execute prisoners, although most do so very rarely, if at all. Six states have abolished the death penalty in the past seven years and death sentences have significantly dropped since 1999. Still, in 2012 the US had the fifth highest number of executions among other nation-states, after China, Iran, Iraq, and Saudi Arabia. Importantly, the decline of executions has emphasized that who is killed by the state likely depends on their race, region and available resources. More than fifty percent of executions since 1976 occurred in the South. Execution in the US has become so obviously arbitrary that its demise seems eminent—what keeps it alive is both the practice’s perceived constitutionality, and the culture of execution that doggedly persists in those states where the majority of executions take place.

Lockett should have died within a few minutes; instead he writhed and gasped for forty-three minutes as witnesses stared, stunned, mouths open.

Oklahoma’s first double execution in nearly 80 years was scheduled for last month, on April 29th. It was to end the lives of killers Clayton Lockett at 6 pm and Charles Warner at 8 pm. The story of Oklahoma’s “botched execution” is familiar now: both men were to be executed via lethal injection, an increasingly secretive and problematic method that has resulted in countless botched executions over the thirty-seven years since it began. The election-year event was preceded by court appeals, political drama and unprecedented legal wrangling. The Oklahoma Supreme Court initially stayed the executions because they determined that the secrecy of the protocols were unconstitutional, but state legislator Mike Christian threatened to impeach the justices. He told the press that he didn’t “care whether inmates are executed by injection, electric chair, firing squad, hanging, the guillotine or ‘being fed to the lions.’” The governor, Mary Fallin, defied the Supreme Court’s decision. Oklahoma justices capitulated. The execution continued. It was a horror.

At 6 pm Clayton Lockett was injected in the groin. Who prepared the drugs, what drugs were used, who injected them into Lockett and with what training? We don’t know because the state of Oklahoma protects this information from the prisoner, the public and even most of the officials inside the Department of Corrections. Lockett should have died within a few minutes; instead he writhed and gasped for forty-three minutes as witnesses stared, stunned, mouths open. Officials finally pulled the curtain that separated the viewing area from the execution chamber. Lockett’s slow torturous death–by heart attack, many have speculated–took place after his execution had been stayed. Governor Mary Fallin immediately postponed the lethal injection of Charles Warner, scheduled for 8 pm.

Death by lion, one of state representative Mike Christian’s accepted execution methods, is, of course, a clear violation of the Constitution’s Eighth Amendment because it would inflict “cruel and unusual” punishment. Lethal injection, say those who have been paying attention, is also a constitutional violation. The 1972 US Supreme Court decision in Furman v. Georgia, a case that initiated a four-year execution moratorium, stated that a punishment is cruel and unusual if it is degrading to human dignity (like torture), arbitrary, clearly rejected by society or unnecessary. (In 1976, Gregg v. Georgia reinstated the death penalty by focusing not on how an execution was conducted but on how sentencing was.) Lethal injection, it can be argued, meets all of Furman’s criteria but one: unpopularity. Clayton Lockett’s death exposes the strategic secrecy departments of corrections across the country have imposed on the procedure—and threatens to finally alter public opinion about how unreliable and painful lethal injection is.

***

Oklahoma became the first state to adopt lethal injection in May 1977. It was seen as medicine’s humane solution to the snapped necks of hanging and the charred, smoking skin of the electric chair, execution methods plagued by the public’s squeamishness and human rights lawyers’ nitpicking. “The law turned to medicine to rescue the death penalty,” writes Fordham University School of Law professor Deborah Denno in her seminal “The Lethal Injection Quandry: How Medicine Has Dismantled the Death Penalty,” published in 2007. “At each step in the political process, concerns about cost, speed, aesthetics, and legislative marketability trumped any medical interest that the procedure would ensure a humane execution.”

Prisoners have essentially become test subjects for untrained executioners sampling experimental drugs in unknown quantities—all shrouded in secret.

Lethal injection, despite its clinical facade, has been fraught with dire problems from the beginning. Medical associations wanted nothing to do with it because many felt that participation in executions violated a doctor’s oath to protect life. The initial Oklahoma protocol was devised by the state’s chief medical examiner, A. Jay Chapman, after two legislators approached him. It was an admittedly arbitrary procedure, created without consultation of other studies that existed at the time and with scant medical knowledge or input. As the new procedure was debated in the Oklahoma house and senate, some argued that lethal injection gave prisoners an easy way out. It was assumed that lethal injection of a prisoner would be like putting them into the deepest sleep. The new procedure, clean, easy, inexpensive, seemingly nonviolent, was rapidly adopted by other states.

From the first lethal injection execution in Texas, of Charles Brooks, Jr. in 1982, the gross problems with the procedure were evident. Those carrying out the protocols were unable to locate Brooks’ vein; it highlighted the need for proper training—or medical involvement—to successfully, reliably complete an execution. During the ’80s and ’90s, as lethal injection became the predominant method of state executions, botched deaths became commonplace. The Death Penalty Information Center lists more than thirty examples, nearly one for every year lethal injection has been used, including Ohio’s execution of Dennis McGuire in January of this year. Though McGuire’s death did not receive the same attention as Lockett’s, McGuire’s family said in court documents that he “repeated cycles of snorting, gurgling and arching his back, appearing to writhe in pain. It looked and sounded as though he was suffocating.”

For the past few years, the drugs commonly used by departments of corrections have been discontinued or increasingly difficult to acquire because manufacturers contest the use of their products for execution and have halted their export into the country. States have resorted to compounding pharmacies, where drugs are often of varying potency and are untested and unregulated. “Even as states adopted riskier and untested drugs, they argued that the identities of the suppliers must remain secret to insulate them from criticism,” Megan McCracken and Jennifer Moreno, lawyers in the Death Penalty Clinic at the University of California, Berkeley, School of Law, wrote in a New York Times op-ed on April 13th. Prisoners have essentially become test subjects for untrained executioners sampling experimental drugs in unknown quantities—all shrouded in secret.

***

No one knew at the time that Turpin and Lucas would be the last two men executed in Canada, but the increasing unpopularity of capital punishment and the circumstances of their deaths made abolition possible. Oklahoma’s botched double execution in April comes at a time when the public has lost its stomach for state killing of prisoners. As well, Lockett’s sad death exposes the public’s long misunderstanding of lethal injection as consistent and safe–indeed, states have tried to perpetuate that myth by protecting their protocols, drug sources and executioners with secrecy. Lockett’s highly publicized death exposes this secrecy for what it is: killings at the hands of the state, without transparency.

“The secrecy needs to stop,” Megan McCracken of UC Berkeley’s School of Law Death Penalty Clinic told me in a telephone interview. Lockett’s horrible death was a “predictable consequence of that secrecy and a rush to execute” a prisoner when protocols and drugs are untested.

I get asked all the time why we should care if an execution is humane. We should care because it says a huge amount about who we are as a society.

Madeline Cohen, the attorney representing Charles Warner, told me in a telephone interview that she was relieved that her client’s execution, scheduled for immediately following Lockett’s, had been delayed until November. Full transparency, she told me, is what is required in all states where lethal injection is used. “This is not about prisoners,” Cohen said, “it’s about us. I get asked all the time why we should care if an execution is humane. We should care because it says a huge amount about who we are as a society. We are a society bounded by law. The death penalty is a deeply broken system. Taking a life in secret puts all of us in jeopardy.”

Across the country, Lockett’s death has imparted a new understanding of just how deeply broken the death penalty is. On May 13, Senator Edna Brown of Ohio introduced Bill 293 which seeks to end capital punishment in her state. According to Brown, the death penalty could not be counted on to deliver justice; a spate of death row exonerations in recent years has caused the public to acknowledge the likelihood of executing innocent persons. According to a study by the National Academy of Sciences in April, one in twenty-five death row prisoners is innocent. Brown’s bill, in the wake of Lockett’s death, has more gravity and import; this year Ohio state changed its own execution protocols.

The first execution scheduled to take place after Lockett’s was in Texas on May 13th. Lawyers for inmate Robert James Campbell filed a last-minute appeal to stay his execution because, they said, Lockett’s horrifying death signaled a “‘dramatic change in the relevant landscape’ and that Oklahoma’s lack of transparency was a major factor in the problems.” Instead a federal appeals court stayed Campbell’s execution for another reason; his IQ is likely below the level required for execution. No one can say what effect Lockett’s death had on the court’s decision.

More proof of a weakening death penalty came last week when the US Supreme Court ruled that states who use a fixed number to determine intellectual incapacity for death row prisoners are acting unconstitutionally. In 2002 in Atkins v. Virginia, the US Supreme Court decided that execution of “mentally retarded defendants” constituted cruel and unusual punishment. Prosecutors have been working double-time since then to fudge the ruling with “bright line” IQ requirements. States have long independently established an IQ limit for mental incompetence; in Florida, for instance, the number is set at 70 and even one or two points over would not disqualify a prisoner from execution. The new ruling requires a broader context be considered and prevents lawyers from cherry-picking low scores or disqualifying evidence that may show the prisoner’s disability. According to The New York Times, “Ten states, however, either consistently apply an I.Q. cutoff score—without factoring in a five-point swing for error—in making their determination or are free to do so. Florida, Kentucky, Alabama and Virginia do it most often.” But no longer.

In Montana this week, District Judge Jeffrey Sherlock ruled, in a case brought by the ACLU challenging the pending lethal injection executions of Ronald Smith and William Gollehon, that only a trial could determine if drugs slated for use comply with Constitutional requirements. Staff Attorney Anna Conley told Montana’s KRTV, “Both Ohio and Oklahoma have used untested drug combinations that resulted in prolonged botched executions that caused extreme pain and suffering. We don’t want Montana to travel down that same path. And with the Montana Constitution’s human dignity clause and its enhanced prohibition on ‘cruel and unusual punishment,’ we cannot use death row prisoners as human guinea pigs.”

There are seventeen executions scheduled to take place before the end of 2014.

Last month Newsweek’s Pema Levy profiled Conservatives Concerned About the Death Penalty, a group working to abolish capital punishment in all states. “Since red states perform the majority of executions, ending the death penalty in the United States would ultimately require conservatives to get on board,” Levy writes. What’s prevented them from doing so? No one’s talked to republicans about why they should repeal the death penalty. Lockett’s death may be a good place to start.

There are seventeen executions scheduled to take place before the end of 2014: six in Texas; two in Missouri; three in Ohio; one in Pennsylvania; one in Florida; two in Tennessee; one in Indiana and one in Oklahoma. Sixteen more executions are already scheduled for 2015 and 2016.

In February McCracken told Democracy Now that “Any time you look at the details of the actual implementation of the death penalty, you uncover problems.” What the courts and society deem humane treatment changes all the time. As prior methods of execution–hanging, gas chamber, electric chair–lost favor with the public, so too is lethal injection losing favor. Lockett’s death demands that we ask ourselves what a humane execution looks like today. Or whether state killing can ever be humane.

Ann Neumann has written for Bookforum, Lapham’s Quarterly, New York Law Review, The Nation, Guernica and others. Her monthly column, “The Patient Body,” about issues at the intersection of religion and medicine, appears at The Revealer, a publication of The Center for Religion and Media at New York University, where she is a Visiting Scholar. She is on twitter @otherspoon.

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One comment for Ann Neumann: Cruel and the Usual

  1. Comment by PieCatLady on June 8, 2014 at 8:21 pm

    Excellent article, exposing our fatally flawed system of executions. Two notes:
    (1) Georgia added Marcus Wellons to the list of scheduled executions – June 17, 2014. The day happens to be my mother’s birthday. I have written to Governor Nathan Deal and the State Board of Pardons and Paroles to ask for clemency, unsure if any further appeals are underway. Wellons has written of his salvation in Jesus Christ, but I ask for clemency because killing is wrong.
    (2) “God’s retribution” is inaccurate. Many oppose the death penalty on religious grounds. Executions are akin to blasphemy – curtailing God’s power to reach and redeem sinners. Jesus said, “Do not return evil for evil.” That is what vengeance and retribution entail – trying to turn two wrongs into a right. It just cannot be done.

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