Roy Englert on the Oklahoma executions

May 1

Oklahoma has recently been home to a state-separation-of-powers skirmish in connection with the attempted (and then botched) executions of Clayton Lockett and Charles Warner.

I haven’t had time to write up my own thoughts about the issue, which are somewhat complicated. But in the meantime, my friend and former boss, Roy Englert, had some thoughts on the botched executions that I thought would be of interest to readers:

“Your first answer didn’t come off well,” my spouse told me. “You sounded as if you approved what happened.”

I had just appeared on national television (the PBS NewsHour with Judy Woodruff) to discuss the botched execution of Clayton Lockett in Oklahoma on April 29. The execution took 40 or so minutes instead of the expected 5, and involved a conscious inmate. It was among the worst botched executions ever using lethal injection in America.

I had noted, on TV, that Clayton Lockett lived for 15 years after he shot a 19-year-old girl and watched as friends buried her alive, and that the difference between 5 and 40 minutes to execute him needed to be placed in context. According to standard elite opinion, it is inappropriate even to mention his crime, unless one does so only as a lead-in to explaining that the horrific crime made some people — the less elite, of course — inappropriately bloodthirsty.

This time, however, the average American — whom Justice Antonin Scalia sometimes refers to as “Joe Six Pack” — may have some wisdom that we Ivy League graduates are missing.

To be clear: I am not a proponent of torturing people as they die, or of secrecy surrounding the drugs used in lethal injections. Once Clayton Lockett’s execution was botched, the Governor of Oklahoma should have called off other pending executions until Lockett’s death can be investigated and the state can learn from its mistakes. And she did. I do not advocate either intentional infliction of suffering during an execution or deliberate indifference to a significant likelihood of suffering.

But neither do I get terribly upset by what happened in Oklahoma on April 29. A human error of some sort caused Clayton Lockett to endure up to 40 minutes of what may have been horrible pain. His victim was buried alive. She was 19. Her murderer’s 40 minutes of suffering were very small compared to what she endured.

I’ve looked at the death penalty from both sides now. The first trial of my legal career was a penalty-phase retrial in Gulfport, Mississippi, in 1983. My first cert. petition was on behalf of that same client, who actually got relief from the Supreme Court of the United States. I have represented one other death-row inmate, a man who was eventually executed in Texas. But I’ve also argued in the Supreme Court against John Harvey Adamson, a hired killer whose victim had to have three limbs amputated before he died. And I argued Baze v. Rees for the Commonwealth of Kentucky, defending the lethal-injection protocol of a state that has not had any botched executions.

Like most Americans, I am ambivalent about the death penalty. In our federalist system, some states have the death penalty and some do not. That’s healthy federalism, in my view, and over time national opinion may coalesce around either the view that we should have the death penalty or the view that we should abolish it, as most European nations have done. I am prepared to accept either conclusion.

While some states have the death penalty, however, we should recognize that our fellow citizens’ democratically expressed judgment is that some killers deserve to die. When they do die, and human error causes a few extra minutes of suffering, we should learn from our mistakes, but we should remember the victims too.

Thoughts?

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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