On Tuesday night, just after 8 P.M., a series of chilling tweets from an Associated Press reporter in Oklahoma City, Bailey Elise McBride, began to circulate widely. McBride was one of the reporters following Oklahoma’s plans to execute two death-row inmates, on the same night, by lethal injection. Both executions, of Clayton Lockett and Charles Warner, were to be carried out by midnight, and, as the Fordham law professor and death-penalty expert Deborah Denno told the Los Angeles Times, “The world was watching.”
Oklahoma had run out of lethal-injection drugs for the same reason that other death-penalty states have also run out of them. As Jeffrey Toobin described in a Comment, the sole American manufacturer of sodium thiopental, a key ingredient in lethal injections, stopped making the drug in 2011. Death-penalty states turned to European manufacturers, but it became impossible to import the drugs to the United States, owing to the European Union’s commitment to wipe out capital punishment worldwide. Left with dwindling supplies, states shifted their execution protocols toward the improvisational, recombining drugs and seeking the services of compounding pharmacies, which are loosely regulated by the federal government.
Where are states getting these chemicals? And how are they tinkering with them? These are excellent questions, but new secrecy laws allow certain states, Oklahoma among them, to remain completely silent on the matter. Constitutional challenges based on Eighth Amendment protections against cruel and unusual punishment have failed. Lethal injection—supposedly ethically superior to hanging, gas, electrocution, and firing squad—has been employed with untested and controversial drug combinations that are bought, with legally protected secrecy, from companies that want anonymity. Texas is refusing to reveal the source of its newest compounded drugs; Georgia considers the names of its suppliers a “state secret.” Secrecy laws involving lethal injection have been attacked, unsuccessfully, in Missouri and Louisiana.
Executions, meanwhile, have continued, some of them with horrific results. In January, the Oklahoma inmate Michael Lee Wilson said, during his execution, “I feel my whole body burning.” An inmate in Ohio spent ten minutes “struggling and gasping loudly for air,” NPR reported, and made “snorting and choking sounds.” It took nearly thirty minutes for him to die.
For the execution of Clayton Lockett, Oklahoma used, for the first time, the midazolam (a sedative) in combination with vecuronium bromide (which paralyzes the respiratory system) and potassium chloride (which stops the heart). The drugs are delivered intravenously, in that order. The suffocating pain caused by the second and third drugs would be agonizing without the sedative effects of the first.
Oklahoma’s secrecy laws make it impossible to know anything beyond the names of the ingredients injected into the condemned prisoner. The state has declined to provide the public with reasons for selecting a particular drug cocktail, or with any details about the drugs themselves, or about the supplier. The state reportedly buys the drugs with petty cash, to make the purchases more difficult to track and, therefore, harder to legally challenge.
What is known, though, is that, ten minutes into Lockett’s execution, a prison official told a doctor, “Go ahead and check to see if he’s unconscious.”
After checking, the doctor said, “Mr. Lockett is not unconscious.”
“I’m not,” Lockett said.
Courtney Francisco, a reporter for KFOR-TV, in Oklahoma City, was one of the witnesses at the execution. She told the BBC that Lockett, strapped to the gurney, was moving his arms and legs and mumbling, “as if he was trying to talk.”
McBride’s tweets told the rest of the story:
“He was conscious and blinking, licking his lips even after the process began. He then began to seize.”
“At 6:33 the doctor said Lockett was unconscious and then at 6:34 Lockett began to nod, mumble move body.”
(Witnesses reported that Lockett seemed to try to sit up. At one point he said, “Man.” Observers heard a prison official say, “Something’s wrong,” and then the blinds on the observation window were closed, and the witnesses were led out.)
“Checking to see the status of Lockett and whether he is alive or dead or in transport to the hospital.”
“Sedated 7 minutes into execution, at that time began pushing 2nd and 3rd drugs. Some concern drugs were not having an effect.”
“7:06 inmate Clayton Lockett suffered heart attack and died.”
“Prison Director has stayed execution for (the second inmate) Charles Warner for 14 days.”
“Lockett’s vein blew during the execution preventing the chemicals from effectively entering his body.”
One of Lockett’s lawyers, a witness, later told reporters, “It looked like torture.”
Lockett was executed for a crime he committed in 1999: he shot a nineteen-year-old girl named Stephanie Neiman with a sawed-off shotgun, and then he watched as a pair of accomplices buried her alive. Charles Warner, the inmate who was to be executed after Lockett, was convicted of raping and killing an eleven-month-old girl in 1997. “This is not about whether these two men are guilty; that is not in dispute,” Ryan Kiesel, the executive director of the American Civil Liberties Union’s Oklahoma office, said in a statement. “Rather, it comes down to whether we trust the government enough to allow it to kill its citizens, even guilty ones, in a secret process.”
After defense lawyers argued for disclosure about the drugs, the Oklahoma Supreme Court agreed to a temporary stay, but the state legislature threatened to bring impeachment proceedings against the justices, and Mary Fallin, the Oklahoma governor, threatened to fight the delay; the execution went forward as planned.
Fallin spent today addressing the fallout, which included a statement from the White House saying the execution had “fallen short of humane standards.” Fallin stayed Warner’s execution for fourteen days and has ordered a full review of execution procedures, “to determine what happened and why.”