Five months after the gruesomely botched execution of Oklahoma convict Clayton Lockett, the state has released new procedures following a review. The new guidelines will require more training for execution staff and increases the dosage of the sedative used in Lockett’s execution, but questions remain about the execution drugs and the ethics that surround the concept of the death penalty.
And in Oklahoma, thanks to changes to its policies on media observers, if something goes wrong when at another next execution, the state will have more power to keep the public from knowing if anything goes wrong.
The new policy cuts the number of media observers allowed at executions by more than half, from 12 to 5, and it allows state officials to remove witnesses from the viewing area and to close the curtain on an execution if the inmate is still conscious after five minutes.
Even before the new protocols were announced, members of the media were fighting for the right to see more of the execution process. The American Civil Liberties Union filed a lawsuit in August against the state to try and force it to allow broader press access to executions, from the insertion of IV lines through to the pronouncement of death.
These new policies show that Oklahoma is more concerned with protecting itself than in making sure their executions don’t violate Eighth Amendment protections against cruel and unusual punishment, Lee Rowland, Staff Attorney for the ACLU’s Speech, Privacy & Technology Project, told msnbc. The suit argues that the press has a First Amendment right to observe executions, a right some courts have already upheld.
“The state’s response to evidence that death penalty is not being administered properly is to make it harder to get that evidence,” Rowland said. The lawsuit’s goal is “full access to witness the initial procedures, and to witness the entire proceeding warts and all. These are exactly the parts of the death penalty it’s most important for the press, and by extension the public, to have access to.”
It was members of the press, Rowland said, that revealed Lockett was conscious during his execution, not the official state report on the execution. “The need for public oversight is absolutely too important in the death penalty context to be outweighed by other concerns,” Rowland said.
A representative from the Oklahoma Department of Corrections did not respond to requests for comment by press time.
On April 29, Clayton Lockett’s execution went horribly wrong, when prison officials injected Lockett with an untried three-drug cocktail. During the nearly 45 minutes between the start of the lethal injection process and Lockett’s death from a heart attack, Lockett appeared to groan, convulse, and struggle to speak. Officials closed the curtain to the observation room before the end of the ordeal.
After April’s debacle, Republican Governor Mary Fallon ordered a top to bottom review of the state’s execution protocols. An autopsy of Lockett found that execution staff spent an hour trying to find a suitable vein before settling on the groin as an injection site.
States with the death penalty have been scrambling to find drugs to use in lethal injections as drug companies have refused to provide drugs for executions. States have turned to compounding pharmacies to mix the drugs, keeping information about the source and exact makeup of drugs secret. Critics say this secrecy increases the likelihood of contamination and error, and many inmates have unsuccessfully challenged states in an attempt to learn more.
Oklahoma’s next execution is scheduled for November 13, when Charles Warner is scheduled to be put to death. Warner’s May 8 execution was postponed for six months so the state could review its execution protocols. There are two more executions scheduled to take place this year.
It is unclear whether the ACLU’s lawsuit will have any impact on the procedures for Warner’s scheduled execution.
Meredith Clark
Meredith Clark is a freelance writer and editor. She was previously a senior news producer for "Patriot Act with Hasan Minhaj," a reporter with MSNBC.com, the digital politics and culture editor at Glamour and a senior news and politics editor at Refinery29. She has written for Vulture, Rolling Stone, Self, Marie Claire, Cosmopolitan, The Daily Beast and Bustle.