On April 29, 2014, the state of Oklahoma tortured Clayton Lockett to death. An anonymous executioner, carrying out a death penalty sentence, attempted to administer a secret three-drug cocktail, starting with a chemical designed to render Lockett unconscious. The executioner then added a drug to paralyze Lockett, and another to stop his heart—both of which would cause a conscious person immense pain, a sensation of asphyxiation and burning. Unfortunately, Lockett was conscious: The first drug was improperly administered. Lockett tried to rise up from the table but could only raise his head. “Oh man,” he said. “I’m not … something’s wrong.” Then he began to buck and writhe. Prison officials closed the curtains to hide the scene from witnesses. Thirty minutes later, Lockett was declared dead.
Lockett’s family sued Oklahoma and Lockett’s executioner for violating Lockett’s Eighth Amendment right to be free from “cruel and unusual punishments.” On Tuesday, the U.S. Court of Appeals for the 10th Circuit tossed out the lawsuit, ruling that Lockett’s lengthy torture was not “cruel and unusual,” but rather “an innocent misadventure.” The ruling is especially disturbing on the heels of a decision by the 8th Circuit allowing states to continue keeping their execution drugs secret. Together, these rulings effectively guarantee that there will be more botched executions in America—and that the victims of this torture and their families will have no legal recourse.
The 10th Circuit rooted its ruling in the fact that “some risk of pain is inherent in any method of execution,” no matter “how humane” it may be. “Simply put,” the court insisted, “the Eighth Amendment does not require the avoidance of all risk of pain in carrying out executions.” Instead, the Constitution simply forbids “the deliberate infliction of pain for the sake of pain.” To bolster this proposition, the court cited a Supreme Court decision from 1890, which is almost comically out of step with modern death penalty jurisprudence.
“Everyone acknowledges that Lockett suffered during his execution,” the court then conceded. “But that alone does not make out an Eighth Amendment claim.” In this case, the court concluded, the state had not intentionally tortured Lockett, but simply embarked upon an “innocent misadventure.” This “isolated mishap” did not violate Lockett’s constitutional rights, and his family’s lawsuit must thus be dismissed.
One aspect of the 10th Circuit’s reasoning is especially perverse. The execution apparently went wrong because the execution team selected an injection site near Lockett’s groin, then placed a cloth over the “groin area … to shield any view of Lockett’s naked groin from witnesses.” This cloth interfered with the injection site, partially displacing the IV. The 10th Circuit dismissed this hugely consequential error with sympathy and admiration for the executioner. His team, the court explained, “covered Lockett’s groin area” not “to cause Lockett pain,” but out of “concerns for Lockett’s dignity and privacy.” These concerns, the court insisted, were reasonable, even commendable—and their ostensible laudability outweighs the fact that they actually constituted gross negligence that resulted in torture.
Although lethal injection was designed to be a humane alternative to more gruesome forms of execution, it has proved to be flawed and unreliable. Lethal injection has the highest rate of botched executions, and when the procedure goes awry, the agony inflicted on the inmate is indescribably severe. Judge Alex Kozinski, who serves on the 9th Circuit, has written that “subverting medicines meant to heal the human body to the opposite purpose was an enterprise doomed to failure.” He has argued earnestly for the return of the firing squad, which is effective and largely foolproof, declaring:
Sure, firing squads can be messy, but if we are willing to carry out executions, we should not shield ourselves from the reality that we are shedding human blood. If we, as a society, cannot stomach the splatter from an execution carried out by firing squad, then we shouldn’t be carrying out executions at all.
Of course, America could also simply abandon its practice of killing certain arbitrarily chosen inmates, like virtually every other Western country. It seems inevitable that the United States will ultimately abolish capital punishment given its plummeting support. But in the meantime, many voters still seem to like executions. And with the election of Donald Trump, abolitionists likely saw their best opportunity for an immediate end to executions—a liberal Supreme Court majority—go out the window.