Judicial Killings and Legal Absurdity

by

“What happened last night to Clayton Lockett is shocking in anyone’s book.”  Those were the words of Rob Freer[1] of Amnesty International.  Lockett had become another casualty of judicial killing, one that took up to 45 minutes to unfold.  For Andrew Cohen, writing in The Atlantic (Apr 30), an unsympathetic character had been transformed into a symbol by acts of murderous enthusiasm.  Some media outlets ran with the suggestion that the execution had been “botched” – an inaccuracy in itself given that Lockett did, in fact, die.

Governor Mary Fallin was, in a one sense, unmoved.  “I believe the death penalty is an appropriate response and punishment to those who commit heinous crimes against their fellow men and women.”  Then, the unsavoury reflection on whether professional standards had been observed in the Lockett execution.  Kill a human being, by all means, but make sure you follow the book.  Accordingly, for Fallin, “the state needs to be certain of its protocols and procedures for executions and that they work.”

The lethal injection regime not only medicalises the process of killing, thereby making a mockery of any medical contribution to its wake.  It brings that foremost of paradoxes to mind: that killing can itself be humane and well administered.  In Lockett’s case, the death was painfully prolonged, showing the farcical nature of such assumptions.

An “independent review” was duly called for, drawing a scornful response from the ACLU of Oklahoma.  In the words of its Executive Director, Ryan Kiesel, “It is impossible for the Department of Public Safety, the Attorney General’s office, or anyone who is under the control of any agency or politician who played a role in this matter to offer  a truly independent assessment” (KFOR, Apr 30).  Such reviews are tantamount to allowing students to mark their own exam papers.

Even by the standards of the Oklahoman death merchants, who have changed their execution protocols twice this year, the use of an untested cocktail of lethal drugs – midazolam, vecuronium bromide and potassium chloride – proved daring.  The state had never used midazolam in an execution.  Two of the drugs used carried warnings that “they can suppress the respiratory system” and cause cardiac problems “at high but non-lethal doses”.[2]  There was no legal oversight on the procurement of the combination.  Medical officials were sidelined.  As Kiesel observed, “This began as a question of whether we trust the government to kill its citizens, even guilty ones, in secret.”

Such a practice in Oklahoma[3] is far from unusual. In the case of Lockett, and that of another inmate scheduled for execution, Charles Warner, lawyers argued that the state was in violation of both state and federal law in refusing to disclose where it obtained the drugs in question, how they were manufactured, their efficacy and other details necessary to avoid inflicting “cruel and unusual” punishment.

However they are described, the judicial killing is a state sanctioned murder. Its calculus is crude and effect, a nonsense. By definition, a judicial killing is a confession that punishment will have no effect other than the removal of life, its appropriation, its expurgation.  It can’t deter – the individual will have no life to be deterred by.  It is irreversible, discriminatory and beyond appeal.  And it has been shown that the death penalty provides little deterrence to other aspiring law breakers.

Prior to Lockett’s execution, a skit of legal absurdity ensued.  The Oklahoman Supreme Court felt that a stay of execution was needed.  The problem there was that the court’s jurisdiction is civil, not criminal.  The Oklahoman Court of Criminal Appeals seemed addled – which one of the bodies had power to enter a stay?  The Supreme Court had passed the judicial ball to their colleagues on the OCCA.  Their colleagues were less than enthusiastic, arguing that no stay could be made in the absence of a substantive claim by the prisoners.  The infliction of death seemed inevitable, the debate, academic.

Since judicial killings were resumed on January 17, 1977, almost 1400 men and women have perished.  The vast majority – some 90 per cent – have been by lethal injection.  All of this goes to show that judicial killings are business and industry. It keeps people and companies in employment – running a death apparatus can bring in the dollars while pacifying a vengeful conscience.  It generates scholarly research of the more morbid variety and good value for necrophilia inclined voyeurs. It keeps experts such as Dr. Nancy Snyderman, NBC’s chief medical editor, busy.  It is also a patriotic assertion – death penalty states affect singularity in retaining it, proud against ‘soft’ humanitarians who would wish to push them into undesirable waters.

Death penalty states hunger for fresh sources of killing. A particularly sensitive subject has been obtaining sodium thiopental after the sole US manufacturer of it ceased production in 2010.  States employing the death penalty have gotten into a huddle over how best to overcome such restrictions and still satisfy the requirements of the Eight Amendment. “Compounding pharmacies” have been sourced, as have overseas suppliers.[4]  The former remain highly problematic, as the drug combinations may well fall short of satisfying the rather macabre constitutional protections against cruel and unusual punishment.

The Lockett execution has also exposed another absurdity.  Having an inquiry into how an execution was carried out is tantamount to having an inquiry on how to wage cleaner wars or have a civilised arms trade.  Lawyers representing death row inmates fall into that same trap, wondering whether the lethal cocktail that will be administered to their clients is somehow “safe”.  After all, there are constitutional pains and unconstitutional ones.  These approaches are inquiries into means, not ends, and affords the executing state a guarantee that, when it takes human lives, it does so in a manner that is assuredly acceptable and quick.  When such manner of logic is tolerated, a cold inhumanity can only be presumed.

Dr. Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge.  He lectures at RMIT University, Melbourne.  Email: bkampmark@gmail.com

Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne. Email: bkampmark@gmail.com

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