Sunday, May 4, 2014

Confused Oklahoma's "French Connection"

Just the Facts, Ma'am
What happened in Oklahoma?

For any MeanMesa visitors who haven't heard the shocking story from Oklahoma, a brief recount is provided here.  Naturally, the news coverage of this event contains the understandable amount of emotional "additives," so MeanMesa will supply the "official version" which comes "right from the horse's mouth."  The following is the account of the "incident" provided to Oklahoma Governess Fallin [R - of course...] by the Director of the Oklahoma Department of Corrections, Mr. Robert Patton. [Letter image and quoted material NPR blog: Oklahoma Botched Execution ]

Oklahoma Issues Timeline Of Botched Execution


May 01, 2014 6:04 PM ET

Clayton Lockett died during a botched execution on Tuesday.AP

Robert Patton, the chief of the Oklahoma Department of Corrections, offered a detailed timeline on Thursday of the botched execution of Clayton D. Lockett.

It reveals that on the morning of the execution, Lockett refused to be restrained, so officers administered an electronic shock with a Taser. Once they removed him from his cell at around 5:30 a.m. CT, officers noticed that he had self-inflicted wounds to his right arm.

After a day of constant observation, Lockett was escorted to the execution table at 5:22 p.m. CT. It took a phlebotomist 51 minutes to find a vein, before settling on one in his groin.

We'll let Patton take it from here:

Patton goes on to call for an indefinite stay of other executions and an external investigation into Lockett's execution.

"While I have complete confidence in the abilities and integrity of my Inspector General and his staff, I believe the report will be perceived as more credible if conducted by an external entity," Patton wrote.

As we reported Wednesday, Oklahoma Gov. Mary Fallin tasked the state's Department of Public Safety commissioner with investigating both this execution and the state's execution procedures.

Madeline Cohen, who represents death row inmate Charles Warner — who was also scheduled to be executed on Tuesday — called the execution "excruciatingly inhumane."

"This most recent information about the tortuous death of Mr. Lockett, and the State's efforts to whitewash the situation, only intensifies the need for transparency," Cohen said in a statement.

Now, although we can probably all agree that this story represents an absolutely toxic PR problem for Oklahoma, the account of how this pious, church loving bunch stumbled into such a mess is even more interesting.  In general while the process of killing a convicted inmate is hardly ever much more than a gruesome manifestation of Christian vengeance [Old Testament style], it isn't rocket science.

The complicating factors in this instance arise from policy mandates created far away in the US Supreme Court.

A Quick Lethal Injection Primer

Here are a couple of articles from the GOOGLE which may help "fill in" more details than anyone would probably ever want to know about lethal injection executions.

Constitutionality in the United States

In 2006, the Supreme Court ruled in Hill v. McDonough that death-row inmates in the United States could challenge the constitutionality of states' lethal injection procedures through a federal civil rights lawsuit. Since then, numerous death-row inmates have brought such challenges in the lower courts, claiming that lethal injection as currently practiced violates the ban on "cruel and unusual punishment" found in the Eighth Amendment to the United States Constitution. Lower courts evaluating these challenges have reached opposing conclusions. For example, courts have found that lethal injection as practiced in California, Florida, and Tennessee is unconstitutional. On the other hand, courts have found that lethal injection as practiced in Missouri, Arizona, and Oklahoma is constitutionally acceptable.

As of 2014, California has nearly 750 prisoners condemned to death by lethal injection despite the moratorium imposed when in 2006 a federal court found California's lethal injection procedures to be unconstitutional. A newer lethal injection facility has been constructed at San Quentin State Prison which cost over $800,000, but it has yet to be used because a state court found that the California Department of Corrections and Rehabilitation violated theCalifornia Administrative Procedure Act by attempting to prevent public oversight when new injection procedures were being created.

On September 25, 2007, the United States Supreme Court agreed to hear a lethal injection challenge arising from Kentucky, Baze v. Rees. In Baze, the Supreme Court addressed whether Kentucky's particular lethal injection procedure comports with the Eighth Amendment and will determine the proper legal standard by which lethal injection challenges in general should be judged, all in an effort to bring some uniformity to how these claims are handled by the lower courts. Although uncertainty over whether executions in the United States would be put on hold during the period in which the United States Supreme Court considers the constitutionality of lethal injection initially arose after the court agreed to hear Baze, no executions took place during the period between when the court agreed to hear the case and when its ruling was announced, with the exception of one lethal injection in Texas hours after the court made its announcement.

On April 16, 2008, the Supreme Court rejected Baze v. Rees thereby upholding Kentucky's method of lethal injection in a majority 7–2 decision. Ruth Bader Ginsburg and David Souter dissented. Several states immediately indicated plans to proceed with executions.

The US Supreme Court actually spelled out the exact process for lethal inject executions -- even including the drugs to be used to provide an execution not violating the Constitution's Eighth Amendment prohibiting "cruel and unusual punishment."  What follows is an excerpt of that decision.


certiorari to the supreme court of kentucky

No. 07–5439. Argued January 7, 2008—Decided April 16, 2008

Lethal injection is used for capital punishment by the Federal Government and 36 States, at least 30 of which (including Kentucky) use the same combination of three drugs: The first, sodium thiopental, induces unconsciousness when given in the specified amounts and thereby ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs, pancuronium bromide and potassium chloride. Among other things, Kentucky’s lethal injection protocol reserves to qualified personnel having at least one year’s professional experience the responsibility for inserting the intravenous (IV) catheters into the prisoner, leaving it to others to mix the drugs and load them into syringes; specifies that the warden and deputy warden will remain in the execution chamber to observe the prisoner and watch for any IV problems while the execution team administers the drugs from another room; and mandates that if, as determined by the warden and deputy, the prisoner is not unconscious within 60 seconds after the sodium thiopental’s delivery, a new dose will be given at a secondary injection site before the second and third drugs are administered.

The Court's majority opinion on the matter turned out to be an over night "marketing masterpiece."  There would be no more eye balls popping out or faces burning away as inmates sitting on electric chairs were slowly dispatched.  There would be no more accidental decapitations with poorly engineered hangings.  In fact, American children could now watch fictional depictions of executions on their television without vomiting, screaming or even having night mares.

This was important.  Folks were obviously really getting off on the killing idea, but the blood and guts weren't so much of an "additional turn on" as they once had been.

An Oklahoma inmate who was supposed to be executed Tuesday instead died of a heart attack after the execution was botched, state officials said.

Clayton Lockett’s execution Tuesday night was halted after about 20 minutes due to an issue with a vein, the Associated Press reported. Not long after Lockett was deemed unconscious from the first of three drugs, he began “writhing on the gurney,” according to the Associated Press. He was declared dead 43 minutes after the execution began.

“If that were happening regularly, this whole thing might unravel,” Dieter said. “The public does not like that. It supports the death penalty, but it has to be massaged or covered…with some veil of humaneness.”

[Richard C. Dieter, executive director of the Death Penalty Information Center, said shortly after the botched Ohio execution that similar executions could shock the public.]   Washington Post: Oklahoma Execution Botched

Even though the condemned inmate appeared to be simply "drifting off for a nap," even the vengeance loving spectators could engage in a subdued biblical chortle as they mumbled "Yessiree. Old Smith got his."

Well, with this Supreme Court decision in hand states all across the country began the institutional killing of inmates with the complete tranquility of a calm only possible with a process already approved by the highest court in the land. In fact, the killing went along "absolutely swimmingly" until a "fly appeared in the ointment."

Oklahoma's Problem and Oklahoma's Solution

That "fly" began in Europe but eventually also began "buzzing around" in the United States, too.

For a variety of reasons mild mannered Europeans had developed a rather stubborn distaste for institutional executions.  At first this was merely a troublesome "public opinion" which could be overlooked quite comfortably, but, as time wore on, that "public opinion" became a "meat handed poker player" in the high stakes game of corporate image management, and, predictably, hence, in corporate marketing strategies, that is, especially in corporate marketing strategies for corporate pharmaceutical manufacturing corporations.

The European pharmaceutical corporations which had been selling the execution drugs to US penitentiaries decided that the "image price" was simply too high, so they quit.  In no time the US pharmaceutical corporations which stepped in to "fill the 'free market' void" also began to feel the "public image" problem, so they also quit.  Worse, many of the "executing states" had abandoned the ridiculously expensive option altogether by this time.

However, those states left -- the ones with voting blocks still salivating for more Christian vengeance -- the ones with plenty of "dirty shirt preachers" still smarting after watching their previously obedient congregations emerge from the Dark Ages -- the ones still filled with eager inmate killers --  were in a pickle.  What happened in Oklahoma demonstrates the "depth and width" of the supply problem they were facing.

The precise drugs mentioned in the Supreme's "go ahead" verdict were no longer available.

The solution took form in two parts.  First, possibly for patent reason or maybe just manufacturing complexity, the "approved list" of killing drugs was set aside.  Doctors around Oklahoma and the other remaining execution states began busily formulating list of alternate, "stand in" killing drugs.  Naturally, there really wasn't any way to test their hypotheses other than to try out the mix on actual prisoners during execution.  You know, experimentation.

Second, even providing the "stand in" drugs on the doctors' lists still carried that stubborn public image problem.  Since these drugs couldn't simply be purchased on the open market, penitentiary officials made their way to "compounding pharmacies" for them.

A "compounding pharmacy" -- unlike a regular pharmacy which simply buys drugs and then sells them to you -- makes its own drugs in its own kitchen.

To mitigate the bad PR which even a compounding pharmacy might expect if the word got out, the Oklahoma Republican legislature eventually passed a law making the identity and the source of the killing drugs a secret.

Not even this went smoothly for the vengeance loving Oklahomans.  The detestable "liberal lawyers" for the inmates scheduled to be executed had the audacity to file a lawsuit to force the Oklahoma prison authorities to disclose the names of the drugs chosen for the job.  Although that lawsuit was supported by an Oklahoma Court with jurisdiction [maybe...], it was, well, as an Oklahoma varmint hunter might say, "anything BUT a clean shot."

Oklahoma just neutered its state Supreme Court
Goodbye, judicial independence

The sorry story began on Monday, April 21, when the Oklahoma Supreme Court stayed the execution of two convicted murderers so that the justices could evaluate the legality of the state's injection secrecy law. That law had allowed state officials to prevent the disclosure of basic information about the drugs used in lethal injections, and was declared unconstitutional late last month by a trial judge who said, "I do not think this is even a close call."
Things got complicated because there are two high courts in Oklahoma — one that focuses on "criminal" matters and one that focuses on "civil" matters. The criminal court, the Oklahoma Court of Criminal Appeals, said it had no jurisdiction to look at the injection secrecy matter. The civil court, the Oklahoma Supreme Court, said that the Court of Criminal Appeals did have jurisdiction.
There was open conflict between the courts. The state Supreme Court criticized the Court of Criminal Appeals for not accepting the appeal and for not halting the executions. The criminal appeals court criticized the state Supreme Court for intruding upon what its judges considered the purely "criminal" matter of execution protocols.
The open warfare within the state judiciary — unseemly, in particular, in the context of capital cases — surely contributed to the chaos that came next.
Before the sun had set Monday, just hours after the Oklahoma Supreme Court halted the executions, the Republican governor of the state, Mary Fallin, proclaimed that the executive branch would not honor the judicial stay preventing the executions. The Supreme Court's "attempted stay of execution is outside the constitutional authority of that body," she declared, so "I cannot give effect to the order by that honorable court."
Gov. Fallin then said she would recognize only the power of the Oklahoma Court of Criminal Appeals to guide her in proceeding with the execution of one of the prisoners, Clayton Lockett, on April 29. In other words, the head of the executive branch of state government had just proclaimed that she would not recognize a duly issued order by the state Supreme Court because she did not agree with it and because the other high court in the state, which did not favor a stay of execution to fully evaluate the injection secrecy issues, stood ready to implement her will.
The story gets worse.
On Tuesday, the day after Gov. Fallin went rogue, a Republican state lawmaker, Rep. Mike Christian, introduced impeachment proceedings against the five state Supreme Court justices who had voted for the stays of execution. In Christian's view, the justices had used "unsupportable arguments regarding constitutional rights" in a way that "should be considered a violation of the oath of office because it constitutes a willful neglect of duty and incompetence." In other words, one day after the executive branch violated separation of powers principles, and overtly threatened the judiciary for an unpopular decision, the legislative branch did as well.
And that's when the Oklahoma Supreme Court simply, tragically, caved in to the political pressure.
[Read the entire article in THE at this link The article]

The rest of the story is history.

Incompetence Leads to 43 Minutes of Medieval Torture
The "executed" inmate said "This isn't working."

Now, MeanMesa is always reluctant to rattle out such a sordid tale without offering some sort of imminently practical solution. The title of this post was, after all, Confused Oklahoma's French Connection.  So, let's take a look at what's available to the Oklahoma killers that can still satisfy their appetite for blood and corpses, "throw a few crumbs" to Oklahoma's biblical vengeance fans and still somehow fit within the general boundaries of that pesky old Supreme Court decision.

While listening to this sad tale on Dr. Rachel Maddow's show, MeanMesa was impressed with the similarity between the laments of the rather amateurish Oklahoma State Corrections Department and an interesting proposal made by Dr. Joseph Ignance Guillotine to the French Assembly a few centuries ago in 1789.  [Joseph didn't actually invent the Guillotine, but it was named after him because he was the lobbyist who finally got the Revolutionary government of France to adopt the practice.]

The problem Dr. Guillotine wanted to solve dealt with the bloody public spectacles being conducted daily as the French patiently tortured their old nobility to death in the streets.  Have a look at the Doctor's 1789 proposal.

The History of the Guillotine
[Cited from The Guillotine Headquarters - attribution link below]

10/10/1789 On the second day of the Assembly debate about the Penal Code, Dr. Guillotin submitted a proposition in six articles which included a recommendation that death, without the accompaniment of torture and by means of decapitation, should become the sole and standard form of capital punishment in France.

1/12/1789 Dr. Guillotin present his six articles for the second time.

1. Offences of the same kind will be punished by the same kind of penalty.

2. In all cases where the law imposes the death penalty on an accused person, the punishment shall be the same, whatever the nature of the offence of which he is guilty; the criminal shall be decapitated; this will be done solely by means of a simple mechanism.

3. In view of the personal character of crime, no punishment of a guilty person shall involve and discredit to his family. The honour of those belonging to him shall be in no way soiled, and they shall continue to be no less admissible to any kind of profession, employment and public function.

4. No one shall reproach a citizen with any punishment imposed on one of his relatives. 
Whosoever ventures to do so shall be publicly reprimanded by the judge. The sentence imposed on him shall be written up on the offender's door. Moreover, it shall be written up on the pillory and remain there for a period of three months.

5. Confiscation of the condemned person's property shall in no case be imposed.

6. The corpse of an executed man shall be handed over to his family on their request. In every case, he shall be allowed normal burial and no reference shall be made on the register to the nature of his death.

3/6/1791 The Assembly approved a text providing that "Every person condemned to the death penalty shall have his head severed.”

10/4/1792 Roederer (Procureur général syndic) and Tobias Schmidt (a German harpsichord maker) reached a happy accord: 960 francs was to cover the cost of manufacturing the machine, the sum moreover providing for a leather bag in which to dispose of the severed head.

11/4/1792 It was on this Friday afternoon, the first real guillotine was set up, in the Cour du Commerce, rue Saint-André-des-Arts. It was tried out on sheep and calves. The blade was not the oblique one yet. It may have been curved like that of an axe, or even straight. Tobias Schmidt the maker of this prototype, had his workshop there, just opposite the printing office in number 8, where Marat had Ami du Peuple printed.

15/4/1792 The first test on human corpses at a combined hospital, prison and old peoples home, at Bicêtre. 3 cadavers were beheaded successfully.

19/4/1792  Guidon went out to Bicêtre to fix the newly conceived blade in position.

21/4/1792 The improved machine was again tried out at Bicêtre. Three corpses were carefully selected from the military hospital in order to obtain, if possible, well-built men who had died in an accident or of some short illness which had not caused them to grow thin.

25/4/1792 Nicolas-Jacques Pelletier was executed on the place de Grève. Sanson operated the machine in dead earnest for the first time. It was not well received by the crowd who called for the return of the gallows.

5/6/1792 The architect Giraud submitted his report requested by Roederer. The report said: "Although well conceived in itself, it has not been perfected to the fullest possible extent. The grooves, the tongues and the gudgeons are of wood;the first should be made of brass, the others of iron; the hooks to which are attached the cords holding up the mouton are only fixed with round-headed nails; they should be fixed with strong nuts and bolts."

21/8/1792 The guillotine was installed at the place du Carroussel, where it stayed until May 7th 1793 with some interruptions, such as the execution of the king, which took place at Place de la Révolution.

Naturally, curious Frenchmen began to wonder if the process were really as "clean and painless" as the Doctor had promised.  That "curiosity" was finally addressed in 1905 [The French continued using the Guillotine until the late 1970's.] with the following report by Dr. Bruneaux who "examined" the decapitated head of an executed criminal.

Does the Head Survive?
[Cited from The Guillotine Headquarters - attribution link below]

Read this report from 1905. The report is written by Dr Beaurieux, who under perfect circumstances experimented with the head of Languille, guillotined at 5.30 a.m. on June 28th, 1905

" I consider it essential for you to know that Languille displayed an extraordinary sang-froid and even courage from the moment when he was told, that his last hour had come, until the moment when he walked firmly to the scaffold. It may well be, in fact, that the conditions for observation, and consequently the phenomena, differ greatly according to whether the condemned persons retain all their sang-froid and are fully in control of themselves, or whether they are in such state of physical and mental prostration that they have to be carried to the place of execution, and are already half-dead, and as though paralysed by the appalling anguish of the fatal instant.

"The head fell on the severed surface of the neck and I did not therefor have to take it up in my hands, as all the newspapers have vied with each other in repeating; I was not obliged even to touch it in order to set it upright. Chance served me well for the observation, which I wished to make.

"Here, then, is what I was able to note immediately after the decapitation: the eyelids and lips of the guillotined man worked in irregularly rhythmic contractions for about five or six seconds. This phenomenon has been remarked by all those finding themselves in the same conditions as myself for observing what happens after the severing of the neck...

"I waited for several seconds. The spasmodic movements ceased. The face relaxed, the lids half closed on the eyeballs, leaving only the white of the conjunctiva visible, exactly as in the dying whom we have occasion to see every day in the exercise of our profession, or as in those just dead. It was then that I called in a strong, sharp voice: "Languille!" I saw the eyelids slowly lift up, without any spasmodic contractions – I insist advisedly on this peculiarity – but with an even movement, quite distinct and normal, such as happens in everyday life, with people awakened or torn from their thoughts.

Next Languille's eyes very definitely fixed themselves on mine and the pupils focused themselves. I was not, then, dealing with the sort of vague dull look without any expression, that can be observed any day in dying people to whom one speaks: I was dealing with undeniably living eyes which were looking at me. "After several seconds, the eyelids closed again, slowly and evenly, and the head took on the same appearance as it had had before I called out.

"It was at that point that I called out again and, once more, without any spasm, slowly, the eyelids lifted and undeniably living eyes fixed themselves on mine with perhaps even more penetration than the first time. The there was a further closing of the eyelids, but now less complete. I attempted the effect of a third call; there was no further movement – and the eyes took on the glazed look which they have in the dead.

"I have just recounted to you with rigorous exactness what I was able to observe. The whole thing had lasted twenty-five to thirty seconds.

Perhaps the most relevant part of the Doctor's account is at the very end.  He describes the entire execution as "complete" with the complete death of the prisoner in "25-30 seconds."

Now, now.  Doesn't this meet the Supreme Court's standard for "not cruel and unusual?"

Come on, Oklahoma.  The Dark Ages weren't THAT long ago.

No comments:

Post a Comment