“My whole body is burning.”
These were Michael Lee Wilson’s last words as he was being executed in Oklahoma on January 9 — the result of a controversial mix of untested drugs.
Now Oklahoma is reaching for new extreme heights in capital punishment by scheduling a double execution today, for Clayton Lockett and Charles Warner. Their answer to the yet-unanswered debacle in January is to shroud these executions in secrecy.
Let’s remember why we are here: “U.S. manufacturers and European Union suppliers of the drugs traditionally used to carry out lethal injection executions have either stopped making the drugs or banned their export to the United States.” This has happened because the European Union, their member states, and the companies based there do not want their products used for executions, which is not their intended purpose. The result has been a macabre scramble for alternative means of killing prisoners in the dwindling number of states that use capital punishment.
Oklahoma is one of the states that turned to unregulated compounding pharmacies. Concerns have been raised outside of the context of executions about lack of accountability and best practice controls in this industry. These concerns are aggravated when the state governments add the layer of secrecy to the mix.
Oklahoma now appears to have compounded the problem by adding a kangaroo court flavor to the mix. We watched in disbelief as a bizarre back and forth unfolded in the Oklahoma Courts, culminating in a stay of executions due to lethal injection drug secrecy. This decision by Oklahoma’s Supreme Court prompted the legislature to move to impeach five justices.
Not to be outdone, Governor Mary Fallin issued an executive order that created a constitutional crisis by pressing the executions forward and ignoring the rule of the State Supreme Court. Disturbingly but not surprisingly, the stays of execution have been lifted by the Justices. And the grandstanding continues now, with the unseemly spectacle of a double execution.
There will be some who will say, what does it matter? People on death row and Clayton Lockett and Charles Warner deserve whatever they get. But the point is that it does matter. It matters whether the state of Oklahoma follows its own laws, let alone the U.S. Constitution, when it seeks to impose the most severe punishment imaginable. It matters whether our government can keep secrets that shield them from the scrutiny of the public and eliminate all accountability. Let’s remember that the last time Oklahoma tried to execute a prisoner it went badly. And it was a shame for all of us as well as the prisoner. Now they say the public has no right to know whether Oklahoma has acknowledged or fixed the problem, let alone whether they have taken any steps to insure that it won’t happen again.
The last time I checked, even the authority to carry out executions did not give states unfettered power that placed them above all laws.
Michael Lee Wilson’s experience is just one of a number of reports of recent botched executions. Just a week after Wilson’s execution, Dennis McGuire took nearly 20 minutes to die in Ohio. He spent those 20 minutes gasping and choking for air. These executions are a disturbing display of government incompetence at best or indifference at worst. They degrade us, they degrade our Constitution, and they degrade our legal system. If the drugs being used to kill prisoners are kept a secret and the places from which they are obtained are in the shadows, how do we know that the proper drugs are being used or that they have not been contaminated or diluted in such a way that would render them ineffective and constitutionally unlawful?
Sometimes the answers to seemingly complex questions are found in good old common sense. I am reminded of a gem of wisdom which seems to fit squarely here: If you can’t do a thing that you would do in the night, under cover of darkness, in the broad and open daylight, maybe you shouldn’t be doing it at all.