Botched Execution Wasn’t Cruel and Unusual

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By Lance J. Rogers

Nov. 17 — A botched execution that left the inmate writhing and thrashing around on his gurney during the 43-minute procedure was “unnecessarily prolonged and horribly painful,” but it wasn’t cruel and unusual, the U.S. Court of Appeals for the Tenth Circuit ruled Nov. 15 ( Estate of Lockett v. Fallin , 2016 BL 379808, 10th Cir., No. 15-6134, 11/15/16 ).

The decision makes clear that an inmate’s estate can’t sustain an Eighth Amendment claim simply by showing that the execution was painful or that the authorities could’ve adopted other fail-safe measures to prevent mishaps.

Some risk of pain is inherent in even the most humane execution methods, the court said in an opinion by Judge Gregory A. Phillips.

Bungled Insertion of IV Line

The court upheld the dismissal of a suit brought by the estate of Clayton Lockett, ruling that the mistakes made during Lockett’s 2014 execution didn’t violate his clearly established right to be free from cruel and unusual punishment.

“Everyone acknowledges that Lockett suffered during his execution,” the court said. “But that alone does not make out an Eighth Amendment claim.”

Much of Lockett’s suffering was attributable to a botched insertion of an intravenous line into Lockett’s groin area, which caused the drugs to leak into the surrounding tissue rather than into his bloodstream, keeping Lockett from receiving full doses of the drugs, the court said. Officials didn’t immediately notice the problem because they had covered the area with a cloth for modesty’s sake.

Mishaps like this don’t rise to the level of “torture or deliberate indifference” necessary to sustain a claim that authorities violated Lockett’s Eighth Amendment rights, the court said.

The court also rebuffed the estate’s argument that the state was indifferent to Lockett’s welfare because this was the first time the state had used the controversial sedative midazolam hydrochloride in its three-drug lethal-injection cocktail.

Oklahoma switched to midazolam because sodium thiopental and pentobarbital had become unavailable, not because the state wanted to inflict additional and unnecessary pain, the court said.

Judges Neil M. Gorsuch joined the opinion. Judge Nancy Moritz filed a concurrence agreeing with the result but suggesting that the majority should’ve limited its discussion to the estate’s failure to overcome the officials’ qualified immunity.

Alan K. Chen, University of Denver, Sturm College of Law argued the case for Lockett’s estate. David W. Lee, Collins Zorn & Wagner, Oklahoma City, and Aaron J. Stewart of the Oklahoma Attorney General’s Office, argued on behalf of the defendants.

To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

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