JURIST Guest Columnist Lauren Sudeall Lucas of Georgia State University College of Law discusses the constitutionality of the opposing arguments surrounding the death penalty …

Society’s memory is short. So, it may be few are still lingering over the particulars of the botched execution that occurred in Oklahoma last month.

Although not as macabre as the details of Clayton Lockett’s failed execution and ensuing death by heart attack, the jarring procedural history of his case’s last days was also troubling. It presented a stark contrast between two opposing sides—one grinding the machinery of death to a halt and the other clearing the way for its operation—with each side deeming its actions to be constitutionally compelled.

The last chapter of the story began early this year when Lockett’s defense attorney filed a civil action challenging Oklahoma’s state secrecy law. This law, similar to others passed recently by states like Georgia, Louisiana, Missouri, Oklahoma, Tennessee and Texas, allowed the state to keep its execution protocols secret. In the course of briefing whether a stay of execution should issue (so that the civil action could proceed), it was revealed [PDF] that the state lacked the drugs needed to carry out the lethal injection protocol. As a result, the Oklahoma Court of Criminal Appeals stayed both Lockett’s execution and the execution of Charles Warner, scheduled just a week later. In its order, the court instructed [PDF] the state to either procure the necessary drug or adopt a new execution protocol.

The state opted to implement a new protocol that substituted another drug, Midazolam, for the elusive sodium thiopental. The combination of drugs included in the new protocol had been used only once before, in Florida. Notably, however, Florida’s protocol had required five times as much Midazolam. Midazolam serves to sedate the inmate before the second drug, which acts as a paralytic, and the third drug, which stops the inmate’s heart, are administered. The lower dosage of Midazolam in the Oklahoma protocol likely increased the possibility that Lockett would not remain unconscious throughout the execution. The grimaces, grunts and other movements witnessed by those at Lockett’s execution before the curtains were closed, even after a doctor had stated that Lockett was unconscious, confirms that Oklahoma’s novel combination did not work properly.

In late March an Oklahoma district court judge found the state secrecy statute unconstitutional. The ensuing litigation created a complicated jurisdictional battle between the Court of Criminal Appeals, which typically has jurisdiction over criminal appeals, and the state Supreme Court, which retains final jurisdiction over civil matters. The Court of Criminal Appeals refused to grant a stay of execution, which would have prevented the state Supreme Court from hearing the case. In an unprecedented move, on April 21, the Oklahoma Supreme Court declared its jurisdictional authority to hear the case and voted [PDF] to grant an indefinite stay of Lockett’s execution.

When the judicial powers failed to ensure Lockett’s timely execution, the legislative and executive branches stepped into the breach. In an executive order issued on April 22, Oklahoma Governor Mary Fallin proclaimed that the state supreme court had overstepped its constitutional authority and overrode [PDF] the court’s decision, reinstating Lockett’s execution for April 29. Oklahoma state representative Mike Christian followed on Governor Fallin’s Heels, denouncing the state Supreme Court’s ruling as a separation of powers violation and calling for the impeachment of the five state Supreme Court justices who had voted for the stay. The next day, in the face of severe political backlash, the state Supreme Court reversed [PDF] its earlier decision and dissolved the stay, allowing the execution to proceed.

This is not the only instance in which other branches of government have attempted to test the judiciary’s will to guarantee access to the courts by proceeding at full steam. Take, for example, Virginia’s insistence on scheduling execution dates before the capital defendant’s appeals process has run its full course. This has prompted [PDF] repeated statements by several US Supreme Court Justices that the states are effectively “truncat[ing the Court’s] deliberate process on a matter—involving a death row inmate—that demands the most careful attention.”

In a slightly different vein, witness the debate surrounding the constitutionality of the Antiterrorism and Effective Death Penalty Act (AEDPA), the federal habeas law that encourages deference to state court judgments and, in doing so, has narrowed the ability of federal courts to grant habeas relief. Although unsuccessful, several judges have suggested [PDF] that the AEDPA is unconstitutional because it violates separation of powers doctrine and infringes on the federal courts’ ability to give effect to their independent judgment that a constitutional violation has occurred.

The decision of whether to impose death as a penalty for committing a crime is wholly within the purview of the people, as expressed through the legislature. But our system of government depends on a system of checks and balances, and we have invested our faith in the courts to ensure that such a grave penalty is not carried out in the midst of constitutional violations.

Yet some courts are also willing to allow the need for timely executions to trump the competing need to ensure that executions are carried out in a constitutional matter. Just this past week, the Georgia Supreme Court upheld the constitutionality of Georgia’s state secrecy law, which conceals the identity of those supplying the drugs for lethal injection. Justice Harris Hines wrote for the majority, “(W)ithout the confidentiality offered to execution participants by the statute … there is a significant risk that persons and entities necessary to the execution would become unwilling to participate.” In other words, the risk that the execution might not proceed, given a lack of willing participants, trumps the inmate’s ability to ensure that the means by which he will be executed are constitutional.

Some judges, like Justice Scalia, read the Eighth Amendment’s prohibition on cruel and unusual punishment [PDF] to forbid only inherently cruel types of punishment, not aspects of its imposition. Concurring in the opinion dissolving the stay, Justice Steven Taylor of the Oklahoma Supreme Court wrote of Lockett and Warner: “If they were being hanged, they would have no right to know whether it be by cotton or nylon rope; or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington ammunition.” Yet the opinions of Scalia and Taylor remain the minority view. The Supreme Court acknowledged in Baze v. Rees [PDF] that a lethal injection protocol might violate the Eighth Amendment’s guarantee against cruel and unusual punishment if it presents a “substantial risk of serious harm.” The Eighth Amendment clearly prohibits torture and, in the case of lethal injection, it may be impossible to know whether the protocol will amount to torture unless its elements are revealed.

Ultimately, judicial and executive officials in Lockett’s case staked out two positions on opposite extremes. On one end was a state supreme court that, in the face of the Court of Criminal Appeals’ refusal to address the merits of the stay, assumed authority over the matter to ensure that Lockett would have his claim heard before it was too late. Those justices voting for the stay believed that to do otherwise would violate [PDF] their oaths of office and deny Lockett his constitutionally guaranteed right of access to the courts. On the other end of the spectrum were strong political forces demanding that Lockett’s execution be carried out, regardless of the outstanding legal issues that remained. In issuing her executive order, Governor Fallin stated that to give effect to the state supreme court’s order would violate her oath to uphold the Constitution.

It cannot be that the same document compels two such differing ends, and it should not be that in the face of contradictory commands, the desire for death trumps all. Should such a conflict arise, it is surely within the judiciary’s province to determine what the law is. Yet, in the context of determining when and how those who are condemned to death will be executed, the judiciary seems to be losing ground. Clayton Lockett was the clearest victim of this violent constitutional showdown, but our faith in the courts’ ability to serve as guardians of the law also suffered a serious blow.

Lauren Sudeall Lucas is a professor at Georgia State University College of Law. Her interests include the intersection of constitutional law and criminal procedure, with a focus on indigent defense reform, and the relationship between rights and identity. She graduated magna cum laude from Harvard Law School and received her BA with distinction from Yale University.

Suggested citation: Lauren Sudeall Lucas, Death in the Sunset of a Constitutional Showdown, JURIST – Forum, May 31, 2014, http://jurist.org/forum/2014/06/lauren-lucas-death-showdown.php.