FacebookTwitterGoogle+RedditEmail

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

Weekend Edition
April 29, 2016
Friday - Sunday
Andrew Levine
What is the Democratic Party Good For? Absolutely Nothing
Roberto J. González – David Price
Anthropologists Marshalling History: the American Anthropological Association’s Vote on the Academic Boycott of Israeli Institutions
Robert Jacobs
Hanford, Not Fukushima, is the Big Radiological Threat to the West Coast
Ismael Hossein-Zadeh
US Presidential Election: Beyond Lesser Evilism
Dave Lindorff
The Push to Make Sanders the Green Party’s Candidate
Peter Linebaugh
Marymount, Haymarket, Marikana: a Brief Note Towards ‘Completing’ May Day
Ian Fairlie
Chernobyl’s Ongoing Toll: 40,000 More Cancer Deaths?
Pete Dolack
Verizon Sticks it to its Workers Because $45 Billion isn’t Enough
Moshe Adler
May Day: a Trade Agreement to Unite Third World and American Workers
Margaret Kimberley
Dishonoring Harriet Tubman
Deepak Tripathi
The United States, Britain and the European Union
Eva Golinger
My Country, My Love: a Conversation with Gerardo and Adriana of the Cuban Five
Richard Falk
If Obama Visits Hiroshima
Vijay Prashad
Political Violence in Honduras
Paul Krane
Where Gun Control Ought to Start: Disarming the Police
David Anderson
Al Jazeera America: Goodbye to All That Jazz
Rob Hager
Platform Perversity: More From the Campaign That Can’t Strategize
Pat Williams
FDR in Montana
Dave Marsh
Every Day I Read the Book (the Best Music Books of the Last Year)
David Rosen
Job Satisfaction Under Perpetual Stagnation
John Feffer
Big Oil isn’t Going Down Without a Fight
Murray Dobbin
The Canadian / Saudi Arms Deal: More Than Meets the Eye?
Gary Engler
The Devil Capitalism
Brian Cloughley
Is Washington Preparing for War Against Russia?
Manuel E. Yepe
The Big Lies and the Small Lies
Robert Fantina
Vice Presidents, Candidates and History
Mel Gurtov
Sanctions and Defiance in North Korea
Howard Lisnoff
Still the Litmus Test of Worth
Dean Baker
Big Business and the Overtime Rule: Irrational Complaints
Ulrich Heyden
Crimea as a Paradise for High-Class Tourism?
Ramzy Baroud
Did the Arabs Betray Palestine? – A Schism between the Ruling Classes and the Wider Society
Halyna Mokrushyna
The War on Ukrainian Scientists
Joseph Natoli
Who’s the Better Neoliberal?
Ron Jacobs
The Battle at Big Brown: Joe Allen’s The Package King
Wahid Azal
Class Struggle and Westoxication in Pahlavi Iran: a Review of the Iranian Series ‘Shahrzad’
David Crisp
After All These Years, Newspapers Still Needed
Graham Peebles
Hungry and Frightened: Famine in Ethiopia 2016
Robert Koehler
Opening the Closed Political Culture
Missy Comley Beattie
Waves of Nostalgia
Thomas Knapp
The Problem with Donald Trump’s Version of “America First”
Georgina Downs
Hillsborough and Beyond: Establishment Cover Ups, Lies & Corruption
Jeffrey St. Clair
Groove on the Tracks: the Magic Left Hand of Red Garland
Ben Debney
Kush Zombies: QELD’s Hat Tip to Old School Hip Hop
Charles R. Larson
Moby Dick on Steroids?
David Yearsley
Miles Davis: Ace of Baseness
FacebookTwitterGoogle+RedditEmail