Assurances about lethal injection rest on the premise that inmates are sedated and unconscious before other excruciating drugs are administered. The horrifying experiences of recent executions make clear these assurances are false. The drugs used in recent executions produced not a sleep into death but many wakeful minutes of struggle and pain. Such executions are clear violations of the Eighth Amendment's prohibition on cruel and unusual punishment and require investigation and action.
In other words, no human being should be death's guinea pig.
We were all reminded of this Tuesday night when the state of Oklahoma executed in a gruesome experiment. Using an untested protocol, with secretly obtained drugs, the state started Lockett's execution at 6:23 p.m. Ten minutes later, Locket was pronounced unconscious and administered the second and third drugs. Shortly thereafter, it became clear that Lockett was not unconscious as he writhed, breathed heavily, and mumbled. He clenched his teeth and tried to rise off the bed. His lawyer said it looked "like torture." The prison officials then dropped the blinds, blocking the view. The warden called off the execution, announcing the obvious: The doctor had observed a problem. He said Lockett's "vein had blown," and they did not know how much of the drugs he had received. Lockett died shortly thereafter of a heart attack when his heart literally burst in his chest. As the White House , Lockett's execution fell short of the humane standards required when the death penalty is carried out.
This was not the first failed experiment in new lethal injection protocols – and not even in Oklahoma. The main drug used in earlier years of lethal injection, sodium thiopental, is no longer available because its manufacturers object to the use of medication for killing. This has led states to concoct new execution protocols and to scramble for alternative drugs.
The new protocols are no more scientific. Recent executions have relied on pentobarbital or midazolam. Both have terrible track records. The reports from observers of Lockett's execution, which used midazolam, have a strong resemblance to those from , whose botched execution in Ohio took place a few months earlier in January. After McGuire was reported by the prison as unconscious, he clenched his fist, heaved, struggled, and made horrible noises, according to witnesses. He was gasping, choking, and snoring in the 25 minutes it took to kill him. The Ohio death recipe is the same that .
We know that pentobarbital, the other drug used in recent executions, will cause excruciating pain in poorly regulated or contaminated batches. Before its new protocol, Oklahoma relied on pentobarbital. This was what was used to execute death row inmate , who cried out during his execution, "I feel my whole body burning."
These botched executions raise critical questions: Why did the execution go so wrong? Is there any reason to think that these particular protocols and combinations of drugs would ever work? Where did the drugs come from, and were the drugs themselves contaminated?
Lockett's lawyers had tried to get answers about the source and the quality of the drugs to be used well before his execution, and a lower court initially ruled that Oklahoma would have to provide these details. But after a wild and unbelievable litigation path – which involved a lawmaker threatening to impeach the state supreme court and the governor asserting that she was not required to follow the supreme court's ruling – the Oklahoma Supreme Court ruled that the execution could proceed in a cloud of secrecy.
Where the drugs come from is a critical question. Many of the drugs – including pentobarbital – are not available through traditional manufacturers and can only be obtained through , where reliability and safety are major concerns. was executed in 2012 by South Dakota using compounded pentobarbital. After he was injected, he gasped heavily, snored loudly with his eyes open, and his skin turned purple. An expert pharmacologist has described this reaction as consistent with contaminated drugs.
States have tried to fend off these critical inquires about the sources of their drugs by relying on secrecy statutes or litigation. The Supreme Court has yet to wade into this area, but a federal appeals court allowed a Missouri execution to go forward under a total veil of secrecy about where the drugs came from. As a dissenting justice described, the "pharmacy on which Missouri relies could be nothing more than a high school class."
Last month, the UN Human Rights Committee, which monitors compliance with the International Covenant on Civil and Political Rights – a treaty ratified by the United States in 1992, expressed concerns regarding the use of untested drugs in lethal injections. The committee noted "with concern reports about the administration, by some states, of untested lethal drugs to execute prisoners and the withholding of information about such drugs."
The committee that the U.S. government "ensure that lethal drugs used for executions originate from legal, regulated sources, and are approved by the United States Food and Drug Administration and that information on the origin and composition of such drugs is made available to individuals scheduled for execution."
These recommendations – transparency and oversight by the F.D.A. of all drugs used in lethal injections – are important ones, but we need full answers about what has gone so horribly wrong. Governor Mary Fallin has acknowledged the need for investigation, but so far, she has failed to appoint an independent investigation. Oklahoma has given us no reason to have confidence that an executive investigation will provide any serious inquiry.
Before Oklahoma, or any other state, engages in executions, we need real answers from an independent investigation. Only with that information can states formulate the effective and transparent standards that the Constitution requires.
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PodcastDec 2024
Capital Punishment
Can Commuting the Row Be Biden's Real Legacy? Herman Lindsey and Cassy Stubbs Discuss With W. Kamau BellCan Commuting the Row Be Biden's Real Legacy? Herman Lindsey and Cassy Stubbs Discuss With W. Kamau Bell
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Press ReleaseDec 2024
Capital Punishment
Over 130 Civil and Human Rights Organizations Call on President Biden to Commute Federal Death SentencesOver 130 Civil and Human Rights Organizations Call on President Biden to Commute Federal Death Sentences
WASHINGTON – More than 130 civil and human rights organizations, led by the American Civil Liberties Union, Amnesty International USA, Southern Poverty Law Center, and the NAACP Legal Defense Fund, issued a letter to President Biden today, urging him to commute the sentences of people on federal death row before he leaves office. The letter highlights the moral and legal failings of the death penalty in the United States and stresses the urgency of action to prevent the potential resurgence of federal executions under an incoming Trump administration. The groups call on Biden to fulfill his campaign promise to address the irrevocably broken federal death penalty and to “bring America into a new era of moral leadership.” President Biden was the first presidential candidate to openly oppose the death penalty, and his administration issued a moratorium on federal executions. With 40 men still on death row, however, the letter emphasizes that commuting federal death sentences is the only irreversible action President Biden can take to prevent the incoming administration from attempting another execution spree. "President Biden has an opportunity to make history by addressing the racist and unjust federal death penalty system and keep an early campaign promise he made to the American people,” said Anthony D. Romero, executive director of the ACLU. “Commuting the sentences of those on death row would help end the death penalty once and for all and prevent a second execution spree by President Trump. Trump’s first act of political theater ended in the execution of 13 people. President Biden shouldn’t allow Trump to repeat that travesty." In Trump’s final months in office, his administration executed 13 people in rapid succession, more than any administration in over 120 years. The Trump administration also amended the federal execution protocol which opened the door to more brutal methods of execution, including death by firing squad, electrocution, and nitrogen hypoxia, an untested and torturous method. Below are additional comments from: Paul O’Brien, executive director, Amnesty International USA: “President-elect Trump has promised to restart and accelerate the federal death machine, just as he did in his last administration. In the span of only 6 months, the Trump administration executed more people than the 10 previous presidential administrations combined. The executions carried out in his first term demonstrated to the world how the federal death penalty is fundamentally broken and that this ultimate cruel, inhuman and degrading punishment should be abolished forever. We should take Trump at his word when he says he plans to repeat this horrific killing spree, and Biden must do what he can now to prevent it.” Janai Nelson, president and director-counsel, Legal Defense Fund: “Since our founding, LDF has been unwavering in its fight to abolish the death penalty and eliminate racial discrimination from our criminal legal system. The death penalty is rooted in slavery, lynchings, and white vigilantism and historically weaponized against people of color. From the Groveland Four in 1949 to many capital cases today, Black people are disproportionately impacted by the ultimate punishment. Commuting the sentences of the 40 individuals on federal death row is an unprecedented opportunity for President Biden to cement his commitment to remedying injustice by exercising executive clemency.” Margaret Huang, president and CEO, The Southern Poverty Law Center: “The death penalty is rooted in a deep history of racialized violence. To this day, race is still the biggest predictor of who gets sentenced to death, with Black people accounting for nearly 40% of those on federal death row, despite representing less than 12% of the adult population. And fully 70% of those on federal death row are from the South. Our nation, and particularly the communities that we serve in the Deep South, cannot achieve true racial justice while the death penalty remains in practice.” Joia Erin Thornton, executive director, FLOCC (Faith Leaders of Color Coalition): “President Biden should commute all federal death sentences because doing so would acknowledge and help redress the racial bias built into the federal death penalty system, allow government resources to be redirected to policies that actually make our communities safer, and allow the families of victims and incarcerated persons to focus on healing instead of living in legal limbo.” This letter is one of more than a dozen letters released today from hundreds of stakeholders from across the political and faith spectrums calling on President Biden to commute all federal death sentences, including Black pastors, former corrections officials, business leaders, current and former prosecutors, families who have lost loved ones to homicide, mental health advocates, and many more. All of the letters can be found here. -
News & CommentaryNov 2024
Capital Punishment
Biden Must Use Final Months in Office to Commute Federal Death SentencesBiden Must Use Final Months in Office to Commute Federal Death Sentences
In our series on how Biden can use the lame duck period to secure civil liberties and civil rights, we examine how Biden can combat President-elect Trump’s plans to greatly expand the death penalty and execute every person on the federal row. -
Press ReleaseNov 2024
Capital Punishment
National Security
Court Rules Signed Plea Agreements with Three of the 9/11 Defendants Are Valid and Must Go Into EffectCourt Rules Signed Plea Agreements with Three of the 9/11 Defendants Are Valid and Must Go Into Effect
WASHINGTON — A U.S. military court has agreed that the plea agreement reached with ACLU client Khalid Shaikh Mohammad back in August is valid and must go into effect. The judge’s decision comes three months after Defense Secretary Lloyd J. Austin III, overruled prosecutors and Brig. General Susan Escallier, the Guantánamo military commission’s convening authority, and revoked the signed plea agreement. In exchange for a guilty plea to all counts, the U.S. government agreed to life imprisonment instead of the death penalty for Khalid Shaikh Mohammad and two other defendants. The military judge’s decision follows litigation by the three defendants to enforce their agreement with the government. The negotiated plea process allows family members to get answers to long-held questions about the attacks directly from the defendants and, at sentencing, make statements about the tragic impact on them and their loved ones. The military judge has said he will next schedule a hearing for the guilty pleas to be entered. Since 2008, through its John Adams Project, the ACLU has provided capital defense support for detainees facing the death penalty in the military commissions, spending over $12.5 million to provide experienced capital defenders, mitigation specialists, investigators, and experts to the under-resourced military defense teams. Our efforts exposed unfairness, secrecy, and the ongoing role of torture in the Guantanamo military commissions, making clear that the commissions are a complete failure. The following is a statement from Anthony D. Romero, executive director of the ACLU: “By reinstating the plea agreements, Col. Matthew N. McCall rightly recognizes that Defense Secretary Austin stepped out of bounds. We are finally back at the only practical solution after nearly two decades of litigation. “The government's decision to settle for life imprisonment instead of seeking the death penalty in the case of Khalid Sheikh Mohammed was always the right call. For too long, the U.S. has repeatedly defended its use of torture and unconstitutional military tribunals at Guantánamo Bay. As a nation, we must move forward with the plea process and sentencing hearing that is intended to give victim family members answers to their questions. They deserve transparency and finality about the events that claimed their loved ones. “This plea agreement further underscores the fact that the death penalty is out of step with the fundamental values of our democratic system. It is inhumane, inequitable, and unjust. “We also urge the U.S. government to quickly relocate the men cleared for transfer, and finally end all indefinite detentions and unfair trials at Guantánamo.”