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Botched execution in Oklahoma raises questions about lethal injection process

April 30, 2014 at 6:20 PM EDT
This November 30, 2009 photo shows the witness room facing the execution chamber of the 'death house' at the Southern Ohio Correctional Facility in Lucasville,Ohio. Photo by Caroline Groussain AFP/Getty Images
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JUDY WOODRUFF: In Oklahoma last night, an execution went terribly wrong after the state tried a new, untested combination of drugs in what was supposed to be a lethal injection. Thirty-eight-year-old Clayton Lockett, convicted of shooting a 19-year-old girl and watching as friends buried her alive, wound up dying from a heart attack in what onlookers described as a gruesome process that took far longer than expected.

As a result, the execution of another convicted killer, which was supposed to take place two hours after Lockett’s, was put on hold by Oklahoma’s Republican governor.

Today, the White House press secretary deplored what happened:

JAY CARNEY, White House Press Secretary: We have a fundamental standard in this country that, even when the death penalty is justified, it must be carried out humanely. And I think everyone would recognize that this case fell short of that standard.

JUDY WOODRUFF: Later in the day, Oklahoma Governor Mary Fallin said the state is launching an investigation. She said it will try to determine Lockett’s cause of death and whether the Department of Corrections followed appropriate protocols and make recommendations to improve standards going forward.

But Governor Fallin also defended the state’s death penalty law.

GOV. MARY FALLIN, R, Okla.: He had his day in court. I believe the legal process worked. I believe the death penalty is an appropriate response and punishment to those who commit heinous crimes against their fellow men and women.

JUDY WOODRUFF: We explore some of the questions raised by this incident about the types of drugs used in lethal injections and whether states can carry them out while keeping with the constitutional requirement that they not be cruel and unusual.

And for that, we turn to Deborah Denno. She’s a professor at Fordham University’s School of Law in New York. And Roy Englert, he practices law in Washington, D.C., and he has defended Kentucky’s lethal injection law before the Supreme Court. And also joining us is a reporter who has been covering this story. She is Cary Aspinwall of The Tulsa World.

Cary Aspinwall, let me begin with you.

You were in the building when the execution was supposed to take place. What — and you were not in the room to watch it, but you were nearby. What did you see? What was the reaction of those who were there at the time?

CARY ASPINWALL, Tulsa World: We were all in the media center, which is just adjacent to where the H Unit is, where they house the death row inmates and where the execution chamber is.

And we were all waiting. They take the media witnesses to the H Unit in little minivans just around the corner. And normally those minivans return with the media witnesses. If the execution starts at 6:00, they are back by 6:30 at the latest, even after going through security and everything. So, as we were waiting in the media center, as 6:30 rolled by, 6:45 and then 7:00, we began to become very concerned about what was going on in there and what in this case my editor and our peers in the media and everyone was witnessing.

JUDY WOODRUFF: And did you talk to some of the people who witnessed what happened afterward?

CARY ASPINWALL: Yes. We immediately started reporting what they had seen and what they had done.

As a media witness pool, they ask you to come back and report to the other members what happened. A lot of us were set to watch the 8:00 p.m. execution that was supposed to take place, but didn’t. That’s the one I was there to witness. But we immediately reported what they had seen and done.

And, at the time, they had been rushed out of there with the curtain closed. They didn’t know where he stood, if Mr. Lockett was still alive, if he was being worked on or rushed to the hospital. So, they were just reporting what he had seen, which was that he was on the gurney as late as 6:30, 6:39, still writhing, grimacing, making noises. He was able to lift his head and shoulders off the gurney.

And at this point, he was supposed to be heavily sedated.

JUDY WOODRUFF: And did the reporters and others who witnessed this compare it to other executions they had seen?

CARY ASPINWALL: Yes, they did. And we all did.

I have witnessed several in Oklahoma myself, and none of them have ever been like that. Some of the people who witnessed Mr. Lockett’s had never seen an execution before, and this was their first one. But we had several veteran reporters there, including my editor, Ziva Branstetter, who had witnessed several, and this was unprecedented in terms of length and what happened once they gave the drugs.

JUDY WOODRUFF: Well, let me bring in Professor Deborah Denno now joining us. She’s with Fordham University Law School.

What is your understanding of what happened here? What went wrong?

DEBORAH DENNO, Fordham University School of Law: Well, it will be hard to know until they have an independent investigation of what went wrong.

But it seems clear that this is not what was supposed to happen. Most lethal injections take place, if they are done correctly, within about four to five minutes. You are not going to have the writhing that was described or an inmate who is showing signs of conscious awareness, as Mr. Lockett was doing. So, this wasn’t supposed to happen.

JUDY WOODRUFF: Roy Englert, what is your sense of it? We know there had been a debate in the state of Oklahoma before this happened, the courts ruling one way, the governor pushing back, and a lot of this had to do with the fact, as we reported, that this was a combination of drugs that hadn’t been tried before.

ROY ENGLERT, Attorney: Well, there will have to be an investigation into exactly what went wrong.

But the preliminary report is that they had difficulty finding a vein or that a vein exploded. That is a known danger with the first drug, the barbiturate. And something did go wrong here. And it needs to be investigated.

That having been said, Mr. Lockett lived 15 years after killing his victim, and we’re worrying about 40 minutes vs. four minutes for the execution. It needs to be kept in context.

JUDY WOODRUFF: So, are you saying — are you defending the process of what happened here? Or you’re saying…

ROY ENGLERT: Oh, of course not, of course not, no.

The governor did the right thing by putting off the 8:00 p.m. execution. The governor did the right thing by ordering an investigation.

JUDY WOODRUFF: Deborah Denno, is there a way to assure that this kind of thing never happens?

DEBORAH DENNO: Well, one way to try to prevent something like this from happening is not having all this secrecy.

It’s pretty clear that this incident should never have happened and probably wouldn’t have happened if the attorneys had been given proper information. I also think it’s very important to separate the actual execution process from the death penalty itself. It’s very clear this Mr. Lockett was guilty of what he did, but nothing should happen like to an inmate as a form of punishment.

JUDY WOODRUFF: What do you mean when you say if the attorneys had been given more information? Why would that have made a difference?

DEBORAH DENNO: Well, if the attorneys had known the source of drug, they could have seen if the drug had been tested, if the drug had been expired.

These are all very important questions to know whether or not the drug is inhumane. Also, it doesn’t stop there. Who performed this execution? What were their qualifications? All of this is in big veil of secrecy that shouldn’t exist. We should be — it should be a transparent process.

JUDY WOODRUFF: And, Roy Englert, we know that a number of states do keep it a secret about what drugs are used in executions. Why is that? Why isn’t this a more transparent process?

ROY ENGLERT: I don’t know. This was not an issue in the Kentucky case that I argued in the Supreme Court.

And I personally am not a defender of secrecy about the drugs that are used in executions.

JUDY WOODRUFF: But it — that’s part of the — of what is…

ROY ENGLERT: Well, my understanding…

JUDY WOODRUFF: … at question here, isn’t it?

ROY ENGLERT: My understanding of what probably went wrong here is that it was the insertion of the intravenous needle into the arm and into the vein that probably is what went wrong.

It probably doesn’t have anything to do with which drug was used, but that should be investigated.

JUDY WOODRUFF: Well, let me bring back Cary Aspinwall at this point.

Were the reporters who witnessed what happened, were they able to shed any light on at what point things seemed to go wrong? What I read today is that the process of putting the drug in that was a sedative was supposed to happen first. And the man being who was executed was declared unconscious, but then after another drug went in was when things started to go wrong.

CARY ASPINWALL: Yes.

According to their policy, after the midazolam, the first drug, the sedative, is inserted and pushed into his system, they are supposed to wait five minutes to make sure that he is unconscious before administering the second and third steps. They maintain that the second and third steps didn’t start until after seven minutes and that he was unconscious.

The members of the media and the witnesses who were present said that he was clearly conscious. He could lift his head and shoulders off the gurney. They heard him say “ma’am” before the curtain was closed.

An unconscious inmate, in previous executions, they didn’t lift their heads. They were very much asleep, out, unaware of what was going on. So, this was different in that regard. And it was very disturbing for them. They were not sure. And then they were frustrated because the curtains were lowered and they couldn’t see what happened from there.

And then a few minutes after that, they were rushed out of the room and they were not allowed to see anything after that point. So, we don’t really know what happened in there.

JUDY WOODRUFF: Roy Englert, does this change the assumption by those who argue that lethal injection is a — can be a humane way to carry out an execution?

ROY ENGLERT: No, it does not, Judy.

The lethal injection, everyone agrees, is humane method of execution if carried out properly. This particular execution was not carried out properly. We have human error of some sort. And that needs to be investigated.

JUDY WOODRUFF: Deborah Denno, do you want to weigh in on that, on what this…

DEBORAH DENNO: Oh, I certainly do.

JUDY WOODRUFF: Go ahead.

DEBORAH DENNO: The three-drug protocol that Mr. Englert worked on in the context of the Baze v. Rees case in 2008 is a very different kind of protocol than was used in Oklahoma.

Since 2008, states have scattered and used all sorts of protocols. We have about 12 different protocols. To equate this protocol, the midazolam, with the kind off protocol that was used in 2008 is — there’s worlds of difference between them.

This was a very problematic protocol that was used in Oklahoma. It was very different than what was used in Kentucky.

JUDY WOODRUFF: Deborah Denno, given now that the governor has, as we have reported, called for an investigation, wants to get to the bottom of what happened, see what the exact protocol was and whether something went wrong, does that satisfy your concerns that this kind of lethal injection could be carried out properly in the future?

DEBORAH DENNO: I really doesn’t.

And I think what we need to do is what the United Kingdom did in the 1950s and have a commission of experts really go over how our lethal injection process is carried out and how our death penalty works. This is just one of a series of problems that have come up. But that wouldn’t be enough.

JUDY WOODRUFF: Roy Englert?

ROY ENGLERT: Well, the overwhelming majority of the 900-plus executions carried out since 1976 have been carried out without any kind of problem.

The list of botched executions from the Death Penalty Information Center covers about 3 percent of all executions. I agree with Professor Denno. There should be no botched executions. We should strive for that. But we do need to keep the scope of problem in mind.

JUDY WOODRUFF: And what is learned from this incident?

ROY ENGLERT: Many things.

One, based on the preliminary facts is that, when an inmate is awake, the execution shouldn’t proceed. Pretty simple. The other is, we need more facts.

JUDY WOODRUFF: All right, we’re going to have to leave it there.

Roy Englert, we thank you, joining us in Washington. Deborah Denno in New York, and to Cary Aspinwall, thank you.

ROY ENGLERT: Thank you.