Boardman writes: "There should be a word or phrase for that kind of public policy disaster, where virtually no Oklahoma institution or authority performed with democratic or human decency."
Oklahoma Attorney General Scott Pruitt in his office. (photo: Jim Beckel/The Oklahoman)
Oklahoma Torture Death Is Only Part of What's Wrong
04 May 14
Oklahoma “justice” is lawless – is there a name for that condition?
irst, let us stipulate that the horrendous death of Clayton Lockett at the hands of Oklahoma state authorities on April 29, 2014, was an unconstitutional state murder of a murderer that should not have happened.
Further, let us stipulate that widespread outrage at the barbarity of this particular state murder is fully justified (even if such outrage may be an evasion of outrage at state murders that go smoothly).
With those stipulations in mind, let us consider the possibility that personal outrage at the vicious killing of Clayton Lockett, in all its emotional purity, tends to deflect, or even substitute for, equally appropriate outrage at the less personal but hardly less important self-evisceration of Oklahoma government.
There’s nothing more to be done to or for Clayton Lockett. Focusing on him and how he died, while proper enough, may well serve to distract people from looking at the massive state failure that produced an execution so monstrous that its perpetrators quickly felt the need to hide it from the witnesses whose right and duty was to see what was done in their and all Oklahomans’ names.
There should be a word or phrase for that kind of public policy disaster, where virtually no Oklahoma institution or authority performed with democratic or human decency. Although hardly unknown elsewhere, the Oklahoma outbreak is a particularly virulent, almost clinical example of what might be called “state sponsored anarchy.”
As a concept, state sponsored anarchy is an oxymoron. A state is, by definition, supposed to be the opposite of anarchy. But in Oklahoma it was the state, through almost all its agents, that perpetrated anarchy of which the state murder was the climax, but far from the final act. This reality is oxymoronic in itself and is aptly described as state sponsored anarchy.
To be fair, Oklahoma’s state sponsored anarchy didn’t come easy
After 23-year-old Clayton Lockett murdered 19-year-old Stephanie Neiman on June 3, 1999, Oklahoma’s initial, official response was to go through the predictable and appropriate steps of arrest, jury conviction, sentence, and a judicial appeals process that included the U.S. Supreme Court's declining to hear the case in 2003 (and again in 2014). The facts of the case appeared so indisputable that, even though a federal court acknowledged that “Lockett’s trial counsel did not present a defense” and Lockett said he was not allowed to participate in his own defense, this was not sufficient to persuade any court to overturn the verdict. What seems to have been reasonable state and federal due process appeared to come to a logical end on January 13, 2014, when the Oklahoma Court of Criminal Appeals set an execution date of March 20 and left a guilty man on death row with no apparent options but executive clemency from the governor.
Recommending against clemency, Oklahoma attorney general E. Scott Pruitt filed a 33-page case summary, saying among other things that: Clayton Lockett’s guilt was never in doubt. He confessed and expressed no remorse. The case included evidence of Lockett characterizing himself as “the most dangerous type of criminal” and “an assassin.” Mitigating evidence included testimony from five family members that Lockett’s mother abandoned him at age three, that his father was a drug user who abused his son, that his father taught him to steal and punished him if he got caught, and more details of a horrific childhood. The medical assessment of Lockett included post traumatic stress disorder, but no finding that he was insane at the time of the murder.
Oklahoma later postponed Lockett’s March 20 execution date, not for any reason of law or clemency, but because Oklahoma was having difficulty acquiring the drugs it wanted to use to kill him. The issue – whether using the drugs caused “cruel and unusual punishment” prohibited by the Constitution – gained urgency in Oklahoma after a prolonged execution in January 2014 during which Michael Wilson writhed and said, “I feel my whole body burning.”
During the years that Clayton Lockett’s case was running its futile appeals course, death penalty states like Oklahoma were facing increasing difficulty getting the drugs that comprised their method-of-choice for state killing. As more civilized parts of the world came to view the death penalty as a primitive barbarity, nations and companies made these medically useful drugs increasingly unavailable for American executions. This began to make states like Oklahoma act like addicts, so desperate for their next death fix that they became willing to try anything to keep it secret.
In Oklahoma, as controversy had grown over what the state was injecting into people to kill them, the legislature didn’t react by requiring that execution drugs be regulated, tested, identifiable, reliable, or otherwise used with transparency and efficacy. The legislature had passed a law in 2011 allowing the state to keep the identities of drug providers secret, thereby effectively keeping elements of its lethal drug cocktails secret from victims and their attorneys, from the courts, and from the public. The legislature, in other words, had enacted state sponsored anarchy.
And the governor had signed off on state sponsored anarchy.
State sponsored anarchy doesn’t always pass constitutional muster
Oklahoma County district judge Patricia Parrish wasn’t buying the state’s arguments. On March 26, 2014, ruling on a challenge to the law by death row inmates Clayton Lockett and Charles Warner, she found the 2011 state law unconstitutional. In her view, the state’s legislative and executive branches were deliberately violating the U.S. Constitution, in particular the constitutional right to due process of law, which a “veil of secrecy” makes impossible, or as she put it: “I think that the secrecy statute is a violation of due process because access to the courts has been denied.” The judge, who said, “I do not think this is even a close call,” was defending state sponsored accountability.
During the hearing before Judge Parrish, Assistant Attorney General Seth Branham said, "This is all just speculation piled upon hyperbole. What is the point of having the information if there's nothing you can do with it?" He warned the judge that she was "treading into some deep water,” apparently implying that there was no stopping this state sponsored anarchy.
[Judge Parrish is an elected judge who may or may not find state sponsored anarchists coming after her at the polls. She is up for re-election in 2014, but as matters now stand, because no opponent met the filing deadline, under Oklahoma law she is an unopposed incumbent who will be automatically re-elected without appearing on the ballot.]
The Oklahoma attorney general promptly appealed Judge Parrish’s ruling to the Oklahoma Supreme Court, which had already, on March 13, referred a motion for stay of execution to the Oklahoma Court of Criminal Appeals [Oklahoma has, in effect, two supreme courts, one for criminal, the other for civil matters, at least in theory].
On April 1, the state revealed the ingredients of their lethal cocktail, but refused to disclose the source of those ingredients, precluding any meaningful assurance that the drugs would meet proper Federal Drug Administration (FDA) standards for pharmaceutical quality. Currently that assurance is impossible in Oklahoma, since one or more of the Oklahoma drugs is being provided by a compounding pharmacy, an entity that is not as effectively federally regulated as a drug manufacturer. And FDA regulation had already been found wanting by the U.S. Court of Appeals for the D.C. circuit in July 2013, when a three-judge panel found unanimously that the FDA “acted in derogation” of its duty under law to assure the quality of drugs imported from abroad for use in lethal injections for state killings in Arizona, California, and Tennessee. So here was Oklahoma struggling to maintain its state sponsored anarchy through a bogus argument that had already been found wanting by a federal court ruling against the FDA’s own state sponsored anarchy on the very same issue.
Oklahoma fell apart with unusual and speedy spectacularity
Following the Oklahoma Supreme Court’s direction, the inmates’ attorneys asked the other supreme court, the Oklahoma Court of Criminal Appeals, to issue a stay of execution until the first supreme court could rule on the state’s appeal of Judge Parrish’s finding that the Oklahoma law on lethal injections was unconstitutional. On April 9, the criminal appeals court refused to issue a stay, saying in effect that it had no authority to issue a stay, since the relevant case was before the other supreme court, not the criminal appeals court. That appears to reflect Oklahoma’s longstanding, structural form of state sponsored anarchy.
On April 17, the Supreme Court of Oklahoma reiterated its initial position, by a 7-2 vote, that issuing a stay was up to the other supreme court. The majority emphasized “the gravity of the first impression constitutional issues” inherent in the appeal of Judge Parrish’s decision; one of the dissenters wrote, “I find absolutely no ‘gravity’ in the Appellant’s claims.” The next day, the other supreme court, the Oklahoma Court of Criminal Appeals, voted 3-2 to reiterate its position that there was nothing it could do to halt the execution of Clayton Lockett (which was then scheduled for April 22). In the dissent joined by a second judge, Vice Presiding Judge Clancy Smith wrote, in part:
“I would grant a stay to avoid irreparable harm as the appellants face imminent execution. I would do so in consideration of the appellants’ right, to avoid the possibility of a miscarriage of justice, and in comity with the Supreme Court’s request for time to resolve the issues pending before it.”
On April 21, opting to preserve the constitutional question before it was made moot by the state’s rush to kill, the Oklahoma Supreme Court voted 5-4 to stay Lockett’s execution, issuing its order at 5:30 p.m. Within hours, Oklahoma governor Mary Fallin, a Republican, denounced the justices for acting “outside the constitutional authority” of the court and stated: “I cannot give effect to the order by that honorable court."
On April 22, Attorney General Pruitt filed a motion asking the Supreme Court to remove the stay. The attorney general’s office said in a statement: “We hope the Supreme Court will recognize the gravity of the constitutional crisis created by their actions and resolve the jurisdictional battle by denying the request for stays of execution.” The court voted 6-3 to leave the stay in place.
Executive defiance of judicial orders generally bodes no good
Then the governor issued an executive order that allowed for a one-week stay, but also set April 29 as the new date for killing Clayton Lockett, thereby partially affirming and essentially overruling the Supreme Court. Fallin’s order raised stark separation of powers issues by asserting executive authority over the judiciary. Disturbing the traditional balance of power this way, even in a state with two supreme courts, surely is an exercise of state sponsored anarchy.
A former legal counsel to two Republican governors in Oklahoma, Stephen Jones, told The New York Times “that both the attorney general and the governor were wrong about the Supreme Court’s authority and that they might be opening themselves to contempt charges.” Jones said: “The Supreme Court is the highest judicial authority of this state. This is political exploitation of unfortunate murder cases, and the governor is inviting a confrontation that, in the end, she will lose.”
Lawyers for the condemned inmates told the Times “that it would be a travesty to carry out the executions before the challenge on lethal drugs was resolved.” They were right, and it was a travesty.
Justifying her action, Fallin’s executive order implied that the governor was the final authority on the meaning of Oklahoma’s constitution, saying in part:
“While I have great respect for the honorable men and women of the Supreme Court, this attempted stay of execution is outside the constitutional authority of that body. I cannot give effect to the Order by that Honorable Court and remain consistent with my oath of office to uphold the Constitution. However, out of extreme deference to the Supreme Court, I will hereby exercise my constitutional authority….”
And then impeachment came before the Oklahoma Legislature
One might expect such an assertion of executive authority over a supposedly independent judiciary to be challenged, perhaps by impeachment. And in fact, a legislator did initiate an impeachment proceeding – against the five Supreme Court justices who had voted to stay the execution long enough to settle the constitutional question raised by Judge Parrish less than a month earlier.
On April 22, Rep. Mike Christian introduced a three-page resolution of impeachment against the five justices, calling their vote to stay the executions “a violation of the oath of office because it constitutes a willful neglect of duty and incompetence within the meaning” of the Oklahoma Constitution. He also said: “This is a case of our state’s judges inserting their personal biases and political opinions into the equation.”
Christian is a Republican and former Oklahoma Highway Patrol trooper. In 2010, Christian was one of many subjects of a criminal investigation into political corruption. The investigation progressed for about six months until Oklahoma attorney general Drew Edmundson, a Democrat who served 16 years in the office, convened a grand jury in August 2010. Term limits forced Edmundson out of office and the investigation appears to have ended inconclusively under his Republican successor, E. Scott Pruitt. Rep. Christian is on record as wanting to deny birth certificates to children born in the United States if their parents are “illegal aliens” (which would likely be unconstitutional under the 14th Amendment), so this impeachment bid is not Christian’s first effort to promote state sponsored anarchy.
Faced with an intransigent governor and a potential legislative lynch mob, the Supreme Court’s five principled members utterly collapsed. On April 23, the court issued a 9-0 decision that lifted the stay it had granted just two days earlier and, without addressing the most fundamental factual or legal issues, took 10 pages of empty legalese to decree that Judge Parrish was wrong and the state’s lethal drug secrecy was constitutional, giving no coherent reason for reaching their conclusions. Under obvious, public duress, the Oklahoma Supreme Court abandoned any pretense of principle and rendered a decision satisfactory to mob rule and state sponsored anarchy.
Despite the court’s complete collapse on the issue of their “impeachable” votes to stay an execution, Rep. Christian continued to push for impeachment of the five justices whose votes displeased him. On April 24, he also said: “I realize this may sound harsh, but as a father and former lawman, I really don't care if it's by lethal injection, by the electric chair, firing squad, hanging, guillotine, or being fed to the lions…. I look forward to justice being served.” On April 28, Christian was on Fox News still pushing impeachment and looking forward to the next day’s execution, and everyone now knows how well that went. It was a triumph of state sponsored anarchy.
Will the means of killing a murderer obscure the means of killing justice?
Who knows, maybe this will all result in serious, actually humane reform, but what are the odds? Here are a few somewhat random straws in the wind:
• The reason Oklahoma used an unusually small amount of the first execution drug was that the state’s supply is limited and officials wanted to be sure to have enough of the drug for all the other state killings they want to carry out.
• Governor Mary Fallin appeared to have a come-to-Jesus moment after the fact, when she said, “I also believe the state needs to be certain of its protocols and its procedures for executions and that they work.” If she’d believed that any earlier, maybe the state would have exercised due diligence in sorting through the issues, or the state might even have used enough of their drugs to kill Lockett “humanely.” But that goes against state sponsored anarchy.
• In the early morning of the day of his death, prison guards tasered Clayton Lockett for resisting medical protocol, according to Oklahoma’s official timeline. Subdued by force and taken to the medical unit, Lockett was then found to have “a self-inflicted laceration to his right arm” that didn’t need stitches but was otherwise unexplained. Mid-morning, Lockett refused food. Late afternoon, Lockett “visits with mental health personnel.” Then a doctor looked for somewhere to stick an intravenous line into Lockett, “No viable point of entry was located” for half an hour or more, “then went to the groin area,” and after 51 minutes, “insertion process is complete.” At 6:23, “Shades in execution chamber are raised.” “Midazolam is administered … offender was still conscious … Vercuronium bromide is administered … Potassium chloride is administered …” At 6:42, “Shades lowered …” Officials learn that not enough drugs were administered to cause death, not enough drugs remained to cause death, Locket was alive and unconscious. At 6:56 “Director calls off the execution.” Ten minutes later, “Doctor pronounced Offender Lockett deceased,” no further detail. The Director recommended “an external investigation” as “more credible.”
• Governor Fallin initiated “an independent investigation,” without appointing any independent investigators.
• Rep. Mike Christian, continuing to exemplify the opposite of his namesake, issued an unintentionally self-contradictory and darkly comic statement in which he said in part: “The botched execution of Lockett last night was unfortunate, but… He’s an absolute monster. Did Lockett’s execution go as planned? No. Did it inflict unnecessary pain on the prisoner? That’s debatable…. I believe – above all else – that the rule of law must be followed and that the punishment fit the crime. We are a nation of laws. When those laws are violated, swift and just punishment should be the end result.” If he actually believed that, he could not have behaved as he has.
• The mother of the victim said on MSNBC after Lockett died that she had opposed his killing and opposed the death penalty. Lockett’s aunt and foster mother quietly said she was all right with it.
• The day after Lockett died, President Obama’s press secretary said that the president “has long said that while the evidence suggests that the death penalty does little to deter crime, he believes there are some crimes that are so heinous that the death penalty is merited. In this case, these cases, the crimes are indisputably horrific and heinous. But it’s also the case that we have a fundamental standard in this country that even when the death penalty is justified, it must be carried out humanely.” As if that’s possible, as if the death penalty isn’t the antithesis of “humane.” It’s not the drugs, it’s the death penalty – and the death penalty, especially as administered in the United States, is quintessentially state sponsored anarchy.
William M. Boardman has over 40 years experience in theatre, radio, TV, print journalism, and non-fiction, including 20 years in the Vermont judiciary. He has received honors from Writers Guild of America, Corporation for Public Broadcasting, Vermont Life magazine, and an Emmy Award nomination from the Academy of Television Arts and Sciences.
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