Cruel and All-Too-Usual

Last week Oklahoma executed condemned defendant Clayton Lockett. The trending headline was that the state “botched” the execution because the new mix of drugs it caused it to take 45 minutes and inflict great pain before death. The execution wasn’t botched–the state attempted to kill a man and succeeded. The state really wanted to do it too. When the Oklahoma Supreme Court stayed the execution, Gov. Mary Fallin ignored the stay and ordered the state to proceed. A state legislator prepared impeachment proceedings against the justices who issued the stay which led to those justices to reverse themselves and allow the execution. Note that supreme court justices in Oklahoma face state elections.

The issue the now deceased Mr. Lockett’s attorneys argued was the secrecy and safety of the drugs of death. States that use lethal injection have been having difficulty obtaining the standard drugs because the European companies that produce them won’t allow them to be used in executions and American companies do not want to start making them. As a result, states desperate to kill have been trying new things. A three-drug protocol was developed in the 1970s to make executions quick without being cruel and painful. Unable to obtain these drugs, Ohio and Oklahoma both used new concoctions this which were untested and not as smooth to say the least.

There were two reactions after the execution was revealed to be less than optimal: 1. That it was terrible, unjust, cruel, etc., and 2. So what? If anything, he didn’t suffer enough! Both reactions are ridiculous. I’ve written about the death penalty in this blog here, here, here and here. I’m against it. Complaining about the method of execution obfuscates the fact that it’s the process–from arraignment through trial and execution–that is unjust and should be eliminated. If a state’s method of execution were for a condemned person to eat, drink and have sex until he or she died of a heart attack, I’d still be against it because the death process is legally unfair and convicts the innocent without being effective in reducing crime.

Connecticut’s upright jerker (patented as the “automatic gallows”). Invented by the Warden of the old State Prison in Wethersfield in 1895, it hung a person by yanking upward on his neck.

The “just shoot him and bill the family for the bullet” argument might get you cheers at a Republican debate but is also a perversion of the criminal justice system because we have the Eighth Amendment which prohibits “cruel and unusual” punishment. That is why we don’t have floggings as punishments for crimes anymore. It’s why death can no longer be a punishment for a non-murder crime against individuals. Executions for rape and robbery–when the victim survived–occurred until the 1960′s. What is cruel and unusual is judged on the “evolving standards of decency” in our society. Strangely it would be cruel and unusual for a state to beat a defendant half to death as punishment for a crime yet it is not cruel and unusual to inject or electrocute him all the way to death. There’s a good argument now that drug manufacturers–not exactly philanthropists–won’t produce execution drugs that society is evolving out of execution. Europe, Australia, Canada, Mexico and South America have already reached this point. The United States, much of the Middle East, Russia, China, North Korea and Vietnam are not there yet.

How do we know that there has been some evolution of decency in the death penalty? Just look at the states that do it. All states have lethal injection even if some still allow defendants to choose a previous method (hanging, firing squad, electrocution, lethal gas, upright jerker). The states that are against the death penalty repealed it. The states that upgraded to lethal injection were clearly ones that supported it. Injection is much more costly than hanging, electrocution or firing squad, so it isn’t cost. There aren’t any Constitutional issues because the Supreme Court has not banned any individual method (although if a state brought back stoning or dismemberment, a 5-4 majority might rule it unconstitutional). States switched to lethal injection because some lawmakers believed that people executed should retain some sort of dignity. Or it could be even more self-serving: they did not want to be perceived as cruel or barbaric. Killing isn’t and shouldn’t be an easy thing for any person to do and even the executioners know that.

“The Constitution is next.”

Here’s a proposal: for an execution to proceed, the governor of the state must carry out the sentence. Not just attend the execution, but throw the switch. Someone else can do the prep work. See how many death warrants are signed then. Rick Perry is a man of faith and justice, surely he can personally push the plunger. Or to save money, he can use a firearm of his choice. There’s a good chance he had an innocent person executed so the guilty shouldn’t be too hard. Gov. Fallin wanted to kill Mr. Lockett so badly, she should jump at the opportunity to see justice done. The legislator who tried to impeach the state supreme court could join her. There’s always “eye for an eye” and justice for the victims talk on the topic of capital punishment. Then why not borrow a page from the past and grant them the legal authority to kill the offender in any method of their choosing? How many would actually go through with it? If that prospect isn’t as appealing for most people as it was in Biblical times or even the early 1900′s, it could be because standards of decency really are evolving.

Chris DeMatteo is an attorney and the sole member of DeMatteo Legal Solutions at 2911 Dixwell Ave., Ste. B10, Hamden, CT. Call (203) 691-6594 or visit the office website. Attorney DeMatteo represents clients in criminal, juvenile and civil matters in all of Connecticut's courts.