Botched Oklahoma Execution Is a Test of Your Government Trust

Steve Russell

Indians of all nations are skeptical of the federal government. This is why, even though most tribal societies practiced capital punishment in one form or another, tribal governments have not rushed to opt in to the federal death penalty.

Oklahoma Indians, of all peoples, understand that their state government is even less trustworthy than the federal government. Unfortunately for the men scheduled to be the subjects of a dual execution the night of April 29, Indians didn’t get to judge the state of Oklahoma’s legal battle to keep the methods secret.

The underlying problem is not peculiar to Oklahoma. Because the United States is one of five nations that carry out most of the executions world wide, and because world opinion considers the death penalty to be a human rights violation, the U.S. is subject to what amounts to sanctions for human rights abuses. Drug companies will not sell their wares for the purpose of killing people. With lethal injection being the most common method of execution in the US, there has been a serious shortage of the drugs necessary to carry it out.

For this reason Oklahoma did not wish to divulge either the drugs to be used or the source of those drugs. Oklahoma politicians were so determined to keep their secrets that an order by the Oklahoma Supreme Court resulted in defiance by Republican Gov. Mary Fallin and an impeachment resolution against five justices of that court introduced by Republican State Representative Mike Christian.

No politician ever lost a vote in Oklahoma by wanting to be more callous to criminals than the law allows, and so the actions of Fallin and the ironically named Christian were par for the course. Oklahoma is one of two states (the other is Texas) that have separate courts of last resort for civil and criminal cases. The Oklahoma Court of Criminal Appeals decided it could not stay an execution because of a civil case demanding information about the execution protocol. When the Oklahoma Supreme Court did, citing the common law rule of necessity, Governor Fallin became determined to disregard her own state’s court.

The Supreme Court delivered an opinion on the hurry-up to avoid the constitutional crisis, and the identity of the drugs was ordered divulged, but not the sources. The interest of the person being executed in knowing someone competent produced the drugs was apparently insufficient to override the interest in the drug provider in being protected from the public disgrace of being involved in a legal killing. The company’s identity is protected.

The state of Oklahoma spent about 43 minutes unsuccessfully attempting to kill Clayton Derrell Lockett. After a person alleged to be a doctor had pronounced Lockett to be unconscious, the executioners started with the killing drugs, which would be painful if he were not unconscious. The supposedly unconscious man was struggling to sit up and say something like “Man, something is wrong…” when the minions of the state of Oklahoma pulled the curtain to cut off the view of the “official witnesses.”

Think about that. They designate members of the media to watch what happens in the execution chamber because we are too civilized to do public executions but we need to know what is being done in our name. Something goes wrong, and the “official witnesses” are cut out of the process and we are once more asked to trust the state government. Think about that.

According to the men behind the curtain, some time after the attempt to kill Lockett had turned into an attempt to revive him, he died of a heart attack. How convenient.

In light of the spectacular failure of Oklahoma’s secret killing procedure, Gov. Fallin issued an executive order to put off the next human science experiment, originally scheduled for later that night, for two weeks. The next experiment will be on a fellow named Charles Fredrick Warner.

Neither of these men challenged their criminal convictions, so they are probably the scum of the earth. Since we, the collective we, have decided to kill them in ways that can turn spectacularly gruesome, we should ask how probably?

I used to put a trick question on some of my criminal justice exams. After inserting some statistical noise to make the distractors (incorrect answers) plausible, I asked what is the probability, in a state that uses the death penalty over an infinite amount of time, that an innocent person will be executed?

The answer is, of course, 100 per cent. Since the United States is in the top five executioner states in the world, we have lots of opportunity for error. Here in Texas, we killed a man for setting a fire that the best scientific evidence showed was not set by anybody.

It would be pretty hard to tell how many mistakes our criminal justice system makes in general but everybody knows it makes mistakes, and we know some of the common causes: false confessions by disturbed individuals, mistaken eyewitnesses, prosecutors hiding evidence. Death cases get more attention than others, leading to the shocking statistic that while death sentences are only one tenth of one percent of all criminal convictions, they are about 12 per cent of exonerations.

The special status of persons under threat of execution, and the fact that they are relatively few, allows an analytical tool from the medical profession, survival analysis, to develop a very conservative estimate of the proportion of false convictions in death cases. (In this statistical method, an exoneration counts as a “death’ in normal survival analysis while remaining in prison is “survival.”)

In a bizarre coincidence, the results of a survival analysis of US death rows came to my attention in the Proceedings of the National Academy of Sciences on the same day the state of Oklahoma tortured Clayton Lockett until he had a heart attack. See what these peer-reviewed scientists concluded:

The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1 per cent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.

I don’t doubt that the US gives fairer trials before killing people than the others of the top five executioner states: China, Iran, Iraq, and Saudi Arabia. Still, I understand why tribal governments are not lining up to subject their citizens’ lives to this process.

I’ve spent a first career working in the criminal justice system and a second career teaching about it. I would not trust my life to that system, nor would most of the people working within it, including prosecutors, though they don’t find it politic to say so in public.

If I trusted the government to decide whom to kill, I’m still not sure I would trust the government’s word that they are not torturing criminals in the process. Oklahoma Gov. Mary Fallin is just the latest in a long line of politicians—to be nonpartisan, I’ll remember that Arkansas Gov. Bill Clinton was another—to use the suffering of people who probably deserved some suffering to advance their political careers.

Until you would trust your own life to the process, it would be best not to reward politicians so eager to sacrifice others on the altar of probability. If what happened in McAlester, in Oklahoma the night of April 29 was not shameful, why did they pull the curtain?

Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.

You need to be logged in in order to post comments
Please use the log in option at the bottom of this page




hesutu's picture
"most tribal societies practiced capital punishment in one form or another" I don't know about those outside turtle island, so let's limit this claim to turtle island (n. america). Is this claim true, that most of our nations had capital punishment? For what crimes? How was the execution done? It seems to me that shunning was very common for serious crimes. That's perhaps a spiritual or cultural death, but is not capital punishment. It was also not uncommon to have conventions such that if you were guilty of murder, the family of the victim had the right to seek revenge without retaliation. That's not really capital punishment by either. Then we had the Aztecs, Mayans and the Pawnees who had sacrifice, which was considered a privilege. With the Mayans the execution of kings who lost a battle might reasonably be considered capital punishment. But what of others who were chosen to die for other reasons. Some went willingly. Capital punishment? Maybe, but it seems something different. Also, nations with these practices were an extreme minority, and likely something of a fairly late development. Capital punishment anything like is now practiced in the US, passed down as a judgement by some sort of judge or jury or council, and then performed on behalf of the society by an executioner. Some nations may have had it. I am skeptical this was a majority of all of our nations.
DunMac's picture
Sir - In your article you state that the United States of America is one of "the top five executioner states". I believe the statistics you cite are mistaken in that they fail to consider North Korea. Although it is arguably impossible to ascertain accurate execution figures for North Korea, reliable reports suggest the nation carried out over 70 executions in 2013 in comparison to 39 in the U.S.(http://static.guim.co.uk/ni/1395910236574/Amnesty_Death_Penalty_2703.pdf?guni=Article:in%20body%20link). While demoting the U.S. to a place in the "top six executioner states" is no less disturbing, it is nevertheless worth getting the facts right.
swrussel's picture
Dunmac: I was going by 2012 figures, when North Korea didn't even crack the top ten, so I guess Dennis Rodman's good buddy has changed things for the worse, though that hardly seems possible. http://www.washingtonpost.com/blogs/worldviews/wp/2013/04/10/an-eye-opening-map-of-which-countries-execute-the-most-prisoners/ The point was and is that the USA is not in distinguished company. hesutu: "Capital punishment IN ONE FORM OR ANOTHER." The point was and is that the lack of tribal opt ins (last time I looked, only the Sac & Fox) is not based on opposition to capital punishment but rather distrust of the feds.
hesutu's picture
Thanks for the response. However, "shouting" with all caps what I had quoted doesn't really explain much here. Are you saying you are using some more expansive definition of capital punishment than is normally accepted? What is that definition, does it include any sort of killing? Here is a common definition: "Capital punishment or the death penalty is a legal process whereby a person is put to death by the state as a punishment for a crime. The judicial decree that someone be punished in this manner is a death sentence, while the actual enforcement is an execution." As you are a state judge sworn to defend the institutions known as Texas and the United States, I am sure I am not saying anything you don't already know. That capital punishment is a legal process where execution is ordered and performed *by the state* as punishment for certain crimes. Do you mean to state that "most" of our indian nations here in north america historically had this? It might be possible, but it's different from my understanding of our various histories. Is there a survey of these practices listed by nations and the protocols and laws? Perhaps you mean to have a more expansive use of "capital punishment" and include say, all homicide and manslaughter between any two parties. If so, should me then be also use that term in general and include its use in other countries when quoting their "capital punishment" statistics. I don't think we'd want to have one use of the term for our people and another for say europeans. If we are talking about things that are not normally considered capital punishment, it would be confusing to then discuss how such and such a european country doesn't have capital punishment at all when actually they do say have the same sorts of revenge killings the definition of which is being covered by the term capital punishment when talking about our nations. It would be best to use the same definition in both cases. So, if we are using a different definition, let's state it and apply it to all discussions from here forward. If using the normal and standard definition, then what sources are there that "most" of our nations historically (pre-columbian) had capital punishment decreed and executed by the state?
hesutu's picture
Also, I appreciate the article and agree with the points. It's just that its opening paragraph launches with a bold and expansive declaration of known fact regarding our peoples which is surprising, unless there is some alternate definition of the term being used. If one says "most" of our nations had more expansive and tolerant understanding of gender identity than europeans did at time of columbian contact, I would agree that is likely true as there is documentation and research of this with lists of nations and the various views and practices, and it's also well known in our passed down stories and oral records. Or if one was to say that "most" of our nations were not pacifists and did not have moral objections to warfare as a means of resolving disputes between nations, I would agree that was likely true for most. Capital punishment by the state and its apparatus and context though is something different. Yes, I can think of several nations that had it. It seems to have been a fairly rare thing among nations though. More typical were community enacted punishments of citizens for specific crimes following a hearing, meeting, judgement of an elder, and other processes with the most extreme punishment commonly being banishment, a form of stripping away of one's citizenship. Perhaps I am wrong and there is some source showing that actually state enacted capital punishment was the most extreme penalty for most nations. If so I would like to know more.
swrussel's picture
I presume you know I'm Cherokee because it says so on all my columns? It follows from that I consider the Blood Law to be "capital punishment." I've also written elsewhere that banishment is, for tribal peoples, "tantamount to capital punishment," but I really don't think it's necessary to go there to make my "sweeping statement" spot on correct. A killing that is sanctioned by the government is capital punishment. I do hope you will not quibble over "sanctioned by the government" by claiming we did not have governments.
hesutu's picture
> I do hope you will not quibble over "sanctioned by the government" by claiming we did not have governments. This is a straw man argument. We both know that I am not asserting this and do not believe it. The use of the straw man fallacy in a discussion is a sign of bad faith. This is unfortunate. > It follows from that I consider the Blood Law to be "capital punishment." I clearly stated in my questions that I agree that some of what you term "tribal societies" (personally I prefer nations) had capital punishment, and I even gave examples. As you know the question I had was about the bold assertion that it was "most tribal societies". I think we both would agree that the Tsalagi is not "most tribal societies". Thus this single example, in addition to the examples I gave prior is not sufficient to demonstrate that "most tribal societies". I had hoped that your statement was simply due to your using a different definition of capital punishment which is why I was asking for clarification. Belligerence, lack of clarification, and divisive fallacies used within flip responses are not helpful or productive. At this point I suppose the matter is answered as much as it can be.