A Brief History of Botched Executions in America

First things first: The crime that brought Clayton Lockett to Oklahoma's death chamber did not present a hard case, as violent murders go. Lockett was sentenced to death almost 15 years ago for the murder of 19-year-old Stephanie Neiman, who he shot and then, with friends, buried alive off a country road. His guilt was not in dispute in his final set of appeals. The arguments were all focussed on the way he was going to die, about the sources and kinds of drugs that were going to kill him.

For all that arguing the last few weeks, though, Lockett still ended up spending more than 40 minutes on a gurney, at times writhing and even rising to say "No," before he finally expired of a heart attack. The lethal injection that was meant to kill him in under ten minutes, doctors say, got drawn out because one of Lockett's veins blew.

Even Oklahoma's own governor was alarmed enough by the horror-film mess of it to postpone a second execution the state had scheduled two hours after the Lockett's, pending the investigation. It's hard to think those 14 extra days are of much comfort to the man who got that delay. He and his lawyers must know that ultimately there is no getting out from under the risks that attend the Way We Kill Criminals in America Today. It is something of a crapshoot, and it always has been.

It is a matter of historical record that executions are quite often botched. Lockett's may seem particularly grotesque at the moment, but today's horror simply obscures the fact that we've been here before. Lethal injection, in fact, was brought in to make the process feel more palatable to supporters of the death penalty, more clinical and under control. Hangings occasionally resulted in either decapitation or slow strangulation. Criminals put in the electric chair had an inconvenient way of smoking, or outright catching on fire. Gas chambers sometimes resulted in cases like that of Jimmy Lee Gray, who died in 1983 while audibly moaning and banging his head against a pole in the chamber.

The turn to drugs hoped to make things less obviously gruesome. It has never, not completely, worked out that way. Raymond Landry, executed in 1988, also spent more than 40 minutes on the gurney groaning before he died; the catheter had popped out. John Wayne Gacy, the serial killer, saw his execution halted when the drugs unexpectedly solidified in the tubes delivering them.

Convulsions, moaning, coughing, gasping: these are words commonly used to describe the last moments of these killers. It's a hard business to kill healthy human beings, in the end, no matter how well you scrub the room, and how expertly the catheter is inserted. And there is an important symbolism in the way that when these things go wrong, as they did with Lockett, the authorities close the blinds and try to hide the actual suffering from view.

Granted, actual suffering doesn't tend to move those who support the death penalty, who see ironic justice rather than straightforward congruence in the fact that the state killed Clayton Lockett in bumbling stages, the way he'd killed Stephanie Nieman. Unfortunately for death penalty proponents, the Constitution holds otherwise, with its prohibition of "cruel and unusual punishment."

That is why, for example, there is usually some kind of anesthetic in the three-drug cocktails typically administered in executions. The assurance that the cocktail thus diminishes suffering also explains how the Supreme Court, in a 2008 case called Baze v. Rees, came to approve the cocktail as constitutionally sound under that "cruel and unusual" standard.

But of late, these drug cocktails have run into more practical problems. Until quite recently, the anesthetic of executioners' choice was usually sodium thiopental. But then its only United States manufacturer quit making that drug under pressure from anti-death-penalty activists. And the European Union has had strict export controls on drugs that could be used in executions since 2011; they can't be sold to U.S. prisons.

Faced with this problem, as Liliana Segura has reported in The Nation and The Washington Post, states have been scrambling to find another solution. What this has meant on the ground is that they are trying out other cocktails, and seeking out drug suppliers of more questionable origins.

In other words, in these executions these days, states are actively experimenting with the technology of death. The methods of killing people are unusual in the basic definitional sense: There is no established protocol. If our Founders, as conservative jurisprudence assures us, took the rightfulness of capital punishment for granted, they expected it to happen by gallows and the firing squad. They weren't making up the method of death on the fly.

And it is a technology we barely understand to begin with. You cannot ask the dead how much they suffered. The attempts to make it palatable can only be that: attempts. Guesses. Which means that in some way, every execution, even one without any external sign of failure, has potentially been botched.

And the procedure is always a mess. When Lockett was filing his final appeals, the technology of death was precisely what he was asking about. He wanted to know exactly what kind of drugs, and in what quantities, Oklahoma planned to use to kill him. Along with a few other states, Oklahoma has a law on the books forbidding the disclosure of facts about the way it is carrying out executions:

The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings. The purchase of drugs, medical supplies or medical equipment necessary to carry out the execution shall not be subject to the provisions of the Oklahoma Central Purchasing Act.

The idea is to protect drug companies from being pressured in the way that ended the reign of sodium thiopental.

But Lockett and some other inmates challenged the law, saying they needed to know where the drugs had come from in order to be sure that they were safe and effective. The Oklahoma Supreme Court ordered a stay while it considered Lockett's appeal. But that stay nearly provoked a constitutional crisis in the state when the Governor said the Court was exceeding its jurisdiction. And last week, the Court backed down, upholding the secrecy law and lifting the stay.

State officials did disclose that the proposed cocktail they would use would include a new drug, midazolam, which is a benzodiazepine like your Klonopins and Valiums and Xanaxes. Evidently it did not work. The drug was a new experiment because the last time Oklahoma put a man to death, in January, they had used pentobarbital from a compounding pharmacy, suspected to be an outfit in Tulsa literally called "The Apothecary Shoppe." And his last words were, "I feel my whole body burning."

[Image by Jim Cooke.]