Some Reflections on the Botched Execution in Oklahoma

The unpleasant, distressing scenes at the execution of Clayton Lockett in a prison at McAlester, Oklahoma, will of course be used by anti-death penalty propagandists as an argument against execution itself. Are they right to do so? I do not think so. Here are some reasons for my opinion.

 

First, let us do what so few of these reports do, and none do prominently (for that might get in the way of the campaign) , and discuss why Clayton Lockett had been sentenced to death in the first place.  As is usual in American executions, the murder was a long time ago, 15 years, the usual interval. Brace yourselves even so. At any distance in time and space, these events make unhappy reading, as indeed do accounts of Mr Lockett’s death.

 

But one always has to remember the beginning of these stories. How many anti-execution campaigners could name, without a pause for research,  the people who died in the Timothy Evans, James Hanratty or Ruth Ellis cases?  How many of those who tell the story of Ricky Ray Rector, pathetically hoping to finish the dessert of his final meal after his notorious Arkansas execution, know why Mr Rector’s brain was damaged (he shot himself in the head in a botched suicide) , or what he had done immediately before this (he had murdered a police officer in distressing circumstances)  

 

Here is a partial account of Mr Lockett’s undoubted crime (it does not describe the gang rape and the sodomy, though Lockett was also convicted of these crimes) , plus a little about the life he snuffed out, that of Stephanie Neiman. It  was published in the ‘Tulsa World’ and was written by Ziva Branstetter :

 

‘[Stephanie’s] parents had taught the teenager to stand up for "what was her right and for what she believed in."

Neiman was dropping off a friend at a Perry residence on June 3, 1999, the same evening Clayton Lockett and two accomplices decided to pull a home invasion robbery there. Neiman fought Lockett when he tried to take the keys to her truck.

The men beat her and used duct tape to bind her hands and cover her mouth. Even after being kidnapped and driven to a dusty country road, Neiman didn't back down when Lockett asked if she planned to contact police.

The men had also beaten and kidnapped Neiman's friend along with Bobby Bornt, who lived in the residence, and Bornt's 9-month-old baby.

"Right is right and wrong is wrong. Maybe that's what Clayton was so scared of, because Stephanie did stand up for her rights," her parents later wrote to jurors in an impact statement. "She did not blink an eye at him. We raised her to work hard for what she got."

Steve and Susie Neiman asked jurors to give Lockett the death penalty for taking the life of their only child, who had graduated from Perry High School two weeks before her death.

 

‘Lockett later told police "he decided to kill Stephanie because she would not agree to keep quiet," court records state.

Neiman was forced to watch as Lockett's accomplice, Shawn Mathis, spent 20 minutes digging a shallow grave in a ditch beside the road. Her friends saw Neiman standing in the ditch and heard a single shot.

Lockett returned to the truck because the gun had jammed. He later said he could hear Neiman pleading, "Oh God, please, please" as he fixed the shotgun.

The men could be heard "laughing about how tough Stephanie was" before Lockett shot Neiman a second time.

"He ordered Mathis to bury her, despite the fact that Mathis informed him Stephanie was still alive."

Bornt and Neiman's friend "were threatened that if they told anybody about these events, they too would be murdered," court records state.

"Every day we are left with horrific images of what the last hours of Stephanie's life was like," her parents' impact statement says.

"We were left with an empty home full of memories and the deafening silence of the lack of life within its walls. ... We feel that the only thing left to do is let Clayton Lockett serve out the sentence of death that a jury sentenced him to. Anything less is a travesty of justice."

 
Wikipedia records that at his murder trial (14 years ago) both DNA from the dead victim, fingerprints from the duct tape used to bind the victim, and eye-witness testimony led to his murder conviction.   I do not think anybody has ever suggested there was any doubt about his guilt.

 

Obviously, the execution went wrong. Obviously any civilised person must regret that greatly , as I do. The purpose of execution is to kill, not to torture. Torture is absolutely wrong.  

 

 

But why did it go wrong? Not because anyone actively wanted it to, but because of several circumstances, some of them brought about by anti-execution campaigners.

 

 One of the reasons it went wrong so was because of the problems inevitably associated with this method of killing. Lethal injection, though a pseudo-medical procedure, is not generally carried out by practising doctors because it would violate their Hippocratic Oath. Yet it requires medical skills and knowledge.  

 

 

The campaigns of anti-execution partisans have made simpler forms of execution (such as the former British method of hanging)  legally problematic. This is because those partisans have never sought their aim through open, democratic means. But sideways,  by attempting to claim that the US constitution outlaws capital punishment, when it actually doesn’t.

 

(Something equally devious happen in In Britain. Here the anti-execution zealots abolished hanging through a ‘Private Member’s Bill’ which was no such thing , but was in fact guided through Parliament with a great deal of help from the then Labour government, which crucially provided Parliamentary time. Most genuine private members’ bills die for lack of such time.   But this aid was never openly acknowledged, nor did Labour ever mention its plans to act in this way in its 1964 manifesto.

 

And, because the vote was ‘free’, that is to say the party whips gave no instructions on either side of the House, no MP ever had to justify his vote at a General Election, since it was never, before or afterwards, an issue in the Labour or Tory manifestoes, and MPs’ individual voting records seldom play much of a part in general election campaigns. So the vote was ‘free’; in the sense that it was ‘free’ from electoral consequences for the MPs involved).

 

In the USA, anti-execution campaigners knew that  the voters of most states (for the US Congress had no power to tell individual states what to do) would not countenance abolition. Those voters would punish legislators if they voted for it in America’s very different political culture (in which party matters less, the individual matters more and  ‘free’ votes would be found out and proclaimed for what they really were) . So they concentrated their efforts on the third, unelected chamber of the US Congress, the nine-man Supreme Court (the nomination of whose justices if probably the single most important task faced by any President) .

 

Their chosen route was to get the Supreme Court to rule that the death penalty was ‘Unconstitutional’( as they would later rule that the laws against abortion were unconstitutional) so at one stroke undermining the freedom of all death penalty states to take individual decisions on this.  A small minority of states had abolished the death penalty by proper open procedures, as they were free to do. As it happened, executions were already in sharp decline at the time. In the 25 years from 1900 to 1924, US states had executed 2,995 people. In the 25 years between 1925 and 1949, that had risen  to 3,644. Between 1950 and 1972, when the Supreme Court eventually did rule it unconstitutional, there were by comparison 916 executions.  I’d be interested in any researched explanations of this drop, but would suspect that a general growth of social and moral liberalism in that period had something to do with it.

 

Politicians might publicly support the death penalty at election time, and keep it on the books. But lawyers and campaigners sought ( as they still seek) to frustrate it by endless appeals, so causing long delays and preventing many executions (By the way, from 1976 -when the penalty was reconstitutionalised - to 2002, there were 780 executions, broadly comparable with the pre-1972 period, but not with the pre-1950 era).

 

This brings to mind an interesting point in the excellent (because thorough, measured and intelligent) but essentially  inconclusive Royal Commission on Capital Punishment of 1949-53. This  pointed out that, as capital punishment’s abolition usually followed a long period of suspension or reduced use, so direct ‘before and after’ comparisons of crimes supposedly deterred by the death penalty were not easy to make.

 

 

Anyway, when the Supreme Court ruled on Gregg v. Georgia in 1976, it recognised (as Britain’s Parliament never has) that it had gone too far in 1972, especially in believing that execution was outdated. Voters in some states had demonstrated clearly that hey still though it justified and moral, as had several state legislatures. One result of this was the rather laudable system of a two-part trial, in which guilt and innocence were decided at one stage, and the question of execution or some other penalty at a second hearing. But the hangover from 1972 has been the desire to avoid any accusation of cruelty, hence the abandonment in practice, of all methods of execution except injection.  This has led to the welcome (to me) disappearance of electrocution, a method I have witnessed myself, In Georgia, and which might well be extremely painful, though we would never know unless we underwent it ourselves. Though a supporter of the penalty in principle, I think the former British method of hanging, which was very swift, is paradoxically the most humane.

 

 

So the State of Oklahoma was using untried chemicals to achieve what was intended to be a painless death, and certainly wasn’t painless in practice. Why was this?

 

 

At least partly it was because lethal injection was adopted by those US states which wished to restore the death penalty after the US Supreme Court had ruled in 1972 that execution was ‘cruel and unusual’, but later accepted that it was not.  And so at least partly it was because of anti-execution campaigns, which adopted sideways methods because they knew that in a free society they could nto achieve their objective by open, direct legislation. .

 

In 1972, in the case of Furman v. Georgia, the US Supreme Court employed the Bill of Rights prohibition of ‘Cruel and Unusual’ punishment, because it was the only part of the US Constitution which gave them the power to intervene in the matter anyway. None of those ruling that it was ‘cruel and unusual’ appear to have agreed with any of the others about precisely why it was so. Two just said it *was* so, because of the changing times, much as people now seek to end an argument by saying ‘don’t you realise it’s the 21st century?’  

 

Three of the four pro-execution Judges said that the 14th Amendment’s reference to the taking of life as a recognised state power made it clear that the drafters of the Constitution had not seen execution as cruel or unusual or contrary to the principles of that constitution. They also pointed out that the death penalty was part of the Anglo-American legal tradition.

 

But one of the anti-execution Justices, Potter Stewart, came up with this not-very-legal formula ‘These death sentences are cruel and unusual in the same way that being struck by lightning is cruel and unusual. For, of all the people convicted of rapes and murders in 1967 and 1968, many just as reprehensible as these, the petitioners are among a capriciously selected random handful upon whom the sentence of death has in fact been imposed.’

 

This is in itself interesting, as it contains within it strong evidence that by 1972 the death penalty in the USA was being carried out in an arbitrary, random fashion, as it is now. In a way it could be taken as a plea for *more* executions. The same is true of arguments that not enough white murderers are executed, or not enough rich murderers are executed.

 

(Before 1940, perhaps this was the case. Executions were certainly quicker in the USA of those days. An interesting example of the death penalty’s rather different, and much quicker application in the USA in the age before liberalism is the case of Giuseppe Zangara, who tried to assassinate President Franklin Roosevelt in Miami, Florida, on 15th February 1933. Mainly because he was standing on a wobbly chair 25 feet away  and using a handgun, Zangara missed Roosevelt altogether, but hit Anton Cermak, the Mayor of Chicago.  Cermak died of his wounds 19 days later. Zangara pleaded guilty to Cermak’s murder and was executed (by electrocution) on 20th March.  His last words were ‘Push the button!’ In these times, he would have lived on, on ‘Death Row’, for 15 years)

 

Then of course there is the European Union’s high-minded ban, which began in 2011, on the export to the USA of one of the drugs used in lethal injection. This has compelled death penalty states in the US to seek new and different drugs, as happened in Oklahoma.  Had it not been for this, there is every reason to believe that Mr Lockett’s execution would have gone ahead without problems. Now, it is quite possible to argue that the Oklahoma authorities should then not have gone ahead with the execution at all, since they could not be sure that their substitute drugs( which are being kept secret) would work. I sympathise with this logic , but only up to a point.

 

And that point is this. Is it any business of the European Union (or of some nice liberal-minded person living in a soft part of London where rape and shooting, followed by burial alive in a shallow grave,  is not a strong likelihood), how the State of Oklahoma conducts its criminal justice? In my view, it is no more their business than it is Oklahoma’s business how murderers are treated in Rotterdam or Milan.  If you really, really want to stop executions in Oklahoma, then go there and persuade the voters and legislators of that state to agree with you. And if you fail to do so, accept that opinions can differ on such things. And, if you are really thoughtful, accept that you just might be mistaken.