When Clayton Lockett started to convulse during his botched execution last week, prison officials closed the blinds, leaving reporters and other observers in the dark as to what was actually happening in the execution chamber.
This is American capital punishment in a nutshell. The public supports the death penalty in theory, but is largely unaware of the unholy mess it has become in practice.
Oklahoma convicted Lockett of the 1999 murder of Stephanie Neiman and sentenced him to die by lethal injection. And he did die, just not as planned. The first drug in the injection process was supposed to render him unconscious, but instead he writhed and mumbled, straining to lift his head and bucking against the straps that held him down. That’s when officials closed the blinds. Shortly thereafter, they called off the execution entirely. Within the hour, Lockett was dead of a heart attack.
This outcome was entirely predictable. Death penalty states have been experimenting with untested execution protocols since 2010, when the go-to drug for lethal injection, sodium thiopental, was discontinued. Corrections officials responded by turning to substitute drugs, speeding up executions, and pulling a veil of secrecy over their practices. None of these responses has fared well.
Substitutes. Substitute drugs are problematic because there are no drugs specifically designed for use in executions. Instead, lethal injection involves the off-label use of drugs made for other purposes, with no testing to back it up. One such drug, midazolam, caused a botched execution in Ohio earlier this year. Yet Oklahoma decided to use that same drug in Lockett’s execution.
Speed. Once states manage to procure substitute drugs, they like to use them before anyone can question whether they work. Missouri recently conducted an execution while the death row inmate’s appeals were still pending. Oklahoma found the drugs it needed and then immediately scheduled not only Lockett’s execution, but also a second execution just two hours later. (If both had taken place, it would have marked the first time in almost 80 years that the state executed two people on the same day.) But haste makes waste, and the debacle of Lockett’s death forced Gov. Mary Fallin to call off the second execution — for now.
Secrecy. That brings us back to the closed blinds. Another way that states stave off challenges to untested protocols is to resist sharing information about what drugs they use, how they administer them and especially where they get them. When the source is revealed, it often proves to be an unregulated fly-by-night supplier. Again, Oklahoma provides a prime example: In the days before Lockett’s death, the state battled fiercely to keep its drug source secret — and prevailed. We now see where that victory led.
Of course, death row inmates like Lockett are hardly sympathetic. In terms of pure vengeance, a painful death is almost certainly what they deserve. But a just society is better than the worst of its members. We don’t rape rapists. We don’t torture torturers. It is this sentiment that is captured in the Eighth Amendment’s protection against cruel and unusual punishment. It is, as Thurgood Marshall famously remarked, “insulation from our baser selves.”
Besides, if we really were comfortable with vengeance, we would showcase it. Executions would be part of the Super Bowl halftime show. Instead, over the years, capital punishment in America has evolved in the opposite direction. It has moved from hanging to electrocution, to the gas chamber, to lethal injection. It has moved from executions in the public square to executions in small rooms. It has moved from executions at noon to executions at midnight.
We’ve made these moves because we like the idea of vengeance, but not (pardon the pun) the execution. Vengeful thoughts are all well and good, but we like the actual vengeance to happen clinically, peacefully and out of sight. Out of sight? Check. But clinical? Peaceful? Not last week.
Clayton Lockett’s execution is a stark reminder that sunshine is the best disinfectant. The first step in a responsible public conversation about the death penalty is to confront the unwelcome truths about how it actually works. Some of these truths involve the execution process, some the administration of the death penalty more broadly. Grossly inadequate counsel. Racial discrimination. Geographic arbitrariness. Excessive cost. Exonerations of death row inmates — more than 140 of them so far.
Pay no attention to the man behind the curtain, the executioners tell us. But the public can no longer afford to remain in the dark about the harsh reality of capital punishment. It’s time to open the blinds.
James Gibson and Corinna Barrett Lain are professors at the University of Richmond School of Law. Contact Gibson at firstname.lastname@example.org; contact Lain at email@example.com.