Experts say botched execution in Oklahoma is unlikely to bring big death-penalty changes

With capital punishment dominating headlines, PostTV looks at the latest statistics on the death penalty in the United States, and in the 21 other countries that executed inmates in 2013. (Davin Coburn/The Washington Post)

The botched execution in Oklahoma that caused a prisoner to die in apparent agony triggered a review by the state’s governor Wednesday but is unlikely to lead to major changes in the death penalty nationwide, experts on capital punishment said.

With the circumstances of Clayton Lockett’s death drawing criticism from activists and even the White House, people on both sides of the debate over capital punishment said the case would trigger a flurry of litigation over lethal injection, the primary method of execution in the United States. Lockett, a convicted murderer, received such an injection Tuesday night, writhed and grimaced on a gurney in a scene described by witnesses as horrific and died 43 minutes later of a heart attack.

But while courts might order changes in how injections are administered and put safeguards in place, the procedure itself is unlikely to be overturned, experts said. The Supreme Court upheld lethal injection as constitutional in 2008, although the ruling came from a divided court and led to more legal challenges. Five states and the federal government have put executions on hold in recent years while designing new methods of administering the deadly drugs.

“I’m skeptical that the courts would ever invalidate lethal injection as a general matter,’’ said Richard Garnett, a law professor at the University of Notre Dame who served as a clerk to William H. Rehnquist when he was chief justice of the United States. “I don’t think they’re going to intervene in such an aggressive way. They’ve been trying to intervene around the edges.’’

Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said the events in Oklahoma’s execution chamber were “revolting” but that “this is somewhat of a fixable problem.’’ He said opponents of capital punishment are more likely to focus their future arguments on other perceived problems with the death penalty, such as wrongful convictions and racial inequities on death row.

The flawed execution led Oklahoma Gov. Mary Fallin (R) to order an independent review of the state’s procedures and delay for at least two weeks the execution of another inmate that had also been scheduled for Tuesday night.

The first test of the episode’s effects elsewhere could come in Texas, where the nation’s next execution is scheduled for May 13. Officials there gave no indication that they would delay the death of another convicted murderer, Robert Campbell.

Texas’s lethal-injection method, which differs from Oklahoma’s, “has been in place since July 2012 — and since then, 33 executions have been carried out without incident,” said Jerry Strickland, a spokesman for the state attorney general’s office.

Even if legal challenges fail, Lockett’s death and the worldwide scrutiny it triggered have the potential to affect the broader national debate about capital punishment, some experts said. Although executions are continuing in the United States, their numbers have dropped significantly in recent years. More states have recently banned the death penalty, and although a majority of Americans still support it, the proportion who do is dropping, polls show.

Austin Sarat, an Amherst University professor who wrote a book about the history of botched executions in America, said the Oklahoma problems are “another stone on the scales tipping way against capital punishment. There are so many doubts already out there about the death penalty. This just adds to the question of ‘do we really need to do this?’ ’’

But Kent Scheidegger, legal director for the California-based Criminal Justice Legal Foundation, a victims advocacy group, said the calls Wednesday for a nationwide moratorium on capital punishment are “hand-wringing” and added: “We’ve had a lot of executions by lethal injection. Very few have had genuine problems.’’

Lockett was convicted by an Oklahoma jury in 2000 of first-degree murder in the shooting death of Stephanie Neiman, 19, whose body was found in a shallow grave on a dirt road.

The United States is one of only six countries that execute inmates by injection.

He had been scheduled to be executed Tuesday night at the Oklahoma State Penitentiary. Instead, a gruesome scene unfolded, shocking media witnesses and state officials alike, after he was deemed unconscious but then began grimacing, moving his head and trying to get off of the gurney. Lockett died of a heart attack 43 minutes after the first injection. Oklahoma Department of Corrections Director Robert Patton said at a news conference that the vein line meant to guide the drugs into his body had “exploded.”

The episode resulted in the postponement of another execution scheduled for Tuesday night at the same prison and drew criticism from experts, activists and others. In Washington, the White House said that the execution was not conducted humanely.

“We have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely,” said Jay Carney, the White House press secretary. “And I think everyone would recognize that this case fell short of that standard.”

The chain of events in Oklahoma spotlighted the escalating problems in administering lethal injections. First adopted by Oklahoma in 1977, the method has been fraught in recent years with drug shortages and a host of related problems, including other executions that were bungled.

The Supreme Court has taken up the subject of lethal injection only once, and in 2008 it decided by a 7 to 2 vote that the most commonly used method did not violate the Eighth Amendment’s ban on cruel and unusual punishment.

But the lopsided decision in Baze v. Rees was misleading. Only two other justices joined Chief Justice John G. Roberts Jr. in ruling that Kentucky’s protocol, which had been used only once, passed muster.

“Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual,” Roberts wrote.

The decision ended what had become a de facto stay on executions while the case was being considered. But the exact protocol approved by the court has been discontinued because of the unavailability of the drugs.

In 2011, Hospira, the sole manufacturer of a key lethal-injection drug, sodium thiopental, announced that it would exit the market. That led to a cascade of shortages as states began running out of that and other drugs, in large part because of the European Union’s opposition to the death penalty.

With legal battles and uncertainty about getting the drugs, some states have considered reviving options such as the firing squad (Wyoming), the gas chamber (Missouri) and the electric chair (Virginia).

Others, such as Ohio, have stuck with legal injection but began using a combination of drugs never before used in the United States. That led to a mishap in the execution of convicted murderer Dennis McGuire this year. McGuire, who admitted to raping and killing a pregnant newlywed named Joy Stewart in 1989, struggled, gasped and choked for several minutes before he was pronounced dead.

Robert Barnes, Scott Wilson and
Alice Crites contributed to this report.

Jerry Markon covers the Department of Homeland Security for the Post’s National Desk. He also serves as lead Web and newspaper writer for major breaking national news.
Mark Berman is a reporter on the National staff. He runs Post Nation, a destination for breaking news and developing stories from around the country.
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