Mimesis Law
27 February 2020

Clayton Lockett’s Execution & Oklahoma’s “Innocent Misadventure”

November 21, 2016 (Fault Lines) — For fourteen years, Clayton Lockett lingered on Oklahoma’s death row after a jury recommended the death penalty for him. For fourteen years, Lockett fought in the judicial trenches to avoid execution. But eventually, the State of Oklahoma got its wish, and on April 29, 2014, Lockett was led from his cell and strapped to a gurney so that he could be put to a perennial sleep.

And then the State screwed up his execution. Royally. This is from the 10th Circuit Court of Appeals’ opinion upholding a federal judge’s dismissal of a lawsuit brought forth by Lockett’s estate against Oklahoma’s governor, amongst others:

At 6:23 p.m., the executioners administered the first drug, midazolam. At 6:33 p.m., Lockett was declared unconscious. After this, the executioners administered the second drug (vecuronium bromide) and the third drug (potassium chloride). Unexpectedly, at 6:36 p.m., Lockett began “twitching and convulsing” on the table. Id. at 152. At 6:37 p.m., he tried to rise from the table but was able only to raise his head and say, “Oh, man,” and “I’m not . . . .” Id. According to some observers, Lockett also said, “something’s wrong.” Id. Soon afterward, Lockett “began to buck and writhe, as if he was trying to raise himself from the gurney[,] . . . [and he] next…”

In response, Dr. Doe examined the IV site and saw that the injection vein had collapsed, preventing some of the drugs from reaching Lockett’s circulatory system. Responding to a question from Director Patton, Dr. Doe advised him that he believed insufficient drugs had entered Lockett’s system to cause death. Dr. Doe also told Director Patton that no other vein was available and that insufficient drugs remained to complete the execution even if Dr. Doe could find another vein. Dr. Doe did not consider or was unaware that the State had a second set of the execution drugs available to execute condemned prisoner Charles Warner later that night. As events soon proved, Dr. Doe was mistaken that the drugs in Lockett’s system might not cause death. At 7:06 p.m., Dr. Doe declared Lockett dead, 43 minutes after the executioners administered the first drug.

If that quote seems long or long-winded (no pun intended), it is because every fact/second counts when putting someone to death. A Roman slave from Howard Fast’s Spartacus condemned to perish on the cross has plenty to offer – no, enlighten — when it comes to an execution’s warped sense of time:

Once, long after this time, a Roman slave was placed upon the cross, and after he had hung there for twenty-four hours, he was pardoned by the emperor himself, and somehow he lived. He wrote an account of what he had felt on the cross, and the most striking thing about his account was what he had to say on the question of time. “On the cross,” he said, “there are only two things, pain and eternity. They tell me that I was on the cross only twenty-four hours, but I was on the cross longer than the world has existed. If there is no time, then every moment is forever. (Emphasis added.)

There are no Mulligans in premeditated state killings, so the screws didn’t get a chance to “make it right” for Lockett and his family.* So his brother took them to court, alleging violations of Lockett’s Eight Amendment rights, in that “a reasonable officer would have been on notice that the failure to promulgate basic policies to protect against painful, barbaric, and torturous executions.”

The 10th Circuit sided with the Sooner State, holding that the screws’ multiple screw-ups were “innocent misadventures,” and thus Lockett’s resulting suffering did not run afoul of the Eighth Amendment. It was not cruel and unusual.  According to the decision, Lockett’s repeated needle sticks did not amount to a constitutional violation. Interestingly, the Court gave an example of what may give rise to an 8th Amendment claim within the execution context: “a series of abortive attempts at electrocution.” That could help those at the receiving end of a state-sanctioned lethal electrocution, but today the electric chair is reserved as a secondary method of execution in only 8 states. So much for that.

The Court noted how OK had to amend its execution protocols several times. It did so to ensure that executions are carried out as swiftly and painlessly as poss . . . Just kidding. It was done because the most powerful nation on earth has had a tough time procuring the necessary drugs to put someone to death.

Even the most ruthlessly capitalistic and successful American global corporations have gotten cold feet about participating in this state-killing enterprise. Even the empty suits appear to be echoing (if only by accident) Etsa St. Vincent Millay’s quote from her poem, Conscientious Objector: “I shall die, but that is all I shall do for Death.” There’s something ironic, pathetic, and hypermacabre about the richest kid on the block acting like a sodium thiopental mendicant.

The U.S. criminal justice system is unique, for the best and worst reasons. But it never hurts to take off the blinders and look abroad, if only for inspiration. In “rationalizing” his country’s abandonment of the death penalty, former French (yes, the French, get off my fries, and go to the comments section) Minister of Justice M. Robert Badinter noted how a state-sanctioned execution was “a totalitarian concept of the relationship between the citizen and the state.”

*This post, Lockett’s lawsuit, or the Court’s opinion has absolutely nothing to do with: (i) Lockett’s guilt; (ii) whether he “deserved” to be killed by prison officials; or (iii) the rights of his victim’s family. So please, don’t go there. Restrain thyself.

3 Comments on this post.

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    21 November 2016 at 9:44 am - Reply


    This is a marvelous bit of writing. The quotation from the slave–pain and eternity–is extremely compelling. Thanks for requiring us to confront, starkly, what it means for the government to kill, especially when badly done. All the best.


    • Mario Machado
      21 November 2016 at 11:06 am - Reply

      Judge Kopf,

      Thank you, I appreciate it. I did my best to bring some light to this very dark topic.

      The best to you & yours.


  • Anon
    22 November 2016 at 9:00 pm - Reply

    Talk about cruel and unusual punishment- one can only shudder to think of the trauma and permanent psychological scarring inflicted on those correctional officers having to carry out and witness something like this event.