The death penalty may be on its death bed.
The botched execution of an Oklahoma inmate Tuesday night has temporarily halted planned executions in that state, but the horrifying death of Clayton Locket is only the most recent in a series of executions to illustrate that lethal injection is not a humane alternative to options like the electric chair or firing squad. With crime rates dropping across the U.S., states abolishing capital punishment, and drug companies abandoning the execution market – forcing the creation of secret and unproven drug combinations – the fight to end the death penalty may have reached a tipping point.
Of the 18 states that have abolished the death penalty, six have done so in the past seven years. Polls show support for the death penalty is at its lowest point since the 1970s. When Democratic Washington Gov. Jay Inslee suspended the death penalty in February, he said said he wanted his state to “join a growing national conversation about capital punishment.”
That conversation will include the growing controversy over lethal injection.
“Other states are going to have to justify their processes to make sure what happened in Oklahoma doesn’t happen there,” Richard Dieter, Executive Director of the Death Penalty Information Center told msnbc. Many states protect the identity of these pharmacies under secrecy laws, which means it is impossible to investigate the quality or source of drugs used in executions before they happen.
Republican Oklahoma Gov. Mary Fallin delayed the execution of Charles Warner for 14 days while the state conducts an investigation into the lethal injection death of inmate Clayton Lockett, who reportedly gasped, writhed, and said “oh man” before dying of a heart attack. At a press conference Wednesday, Fallin promised a thorough review but defended capital punishment as appropriate for “those who commit heinous crimes against their fellow men and women.”
The White House expressed concern on Wednesday over the circumstances of the execution. “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,” Press Secretary Jay Carney said.
Since Hospira, the only American company to manufacture the lethal injection drug sodium thiopental, stopped producing it in 2011, states have scrambled to find alternative methods to execute people. In many cases they have had to rely on outlets called compounding pharmacies, which mix and supply drugs but are not subject to the same federal regulations as large scale manufacturers.
When new combinations are used, there is no way to know what will happen. Death row inmates have sued in Missouri, Texas and Oklahoma to learn more about the drugs to be used in their executions, but so far judges have rejected their requests.
Lockett and Warner had filed a lawsuit to force the state to reveal information about the drugs to be used in their executions. They argued Oklahoma’s secrecy law guarding those details made it impossible to guarantee the drugs would not cause enough pain and suffering to qualify as cruel and unusual punishment.
Some states may still cling to the death penalty even after Oklahoma’s gruesome spectacle. Ohio officials announced Monday they would increase the dosages of the two drugs used in executions despite the controversial execution of Dennis McGuire in january. During the procedure, he reportedly breathed heavily and showed signs of distress during the 25 minutes it took for him to die. The drug cocktail used in that execution had never been tried before.
On Wednesday, The American Civil Liberties Union asked Ohio Governor John Kasich, a Republican, to suspend all executions in the state through 2015. That same day, Kasich commuted the sentence of Arthur Tyler, whose execution had been scheduled for May 28. The Ohio Parole Board had unanimously recommended clemency for Tyler.
Besides the human rights questions raised by capital punishment, it’s getting harder for states to deny that they are executing innocent people.
A study published this week estimates that one in 25 people sentenced to death had been wrongly convicted – a number the authors say is a conservative estimate. That means there have likely been other cases like that of Cameron Todd Willingham, who was executed in 2004 for killing his children in a fire. A 2009 New Yorker story about the case suggested that Texas had almost certainly put him to death in spite of evidence of his innocence.
Abolitionist groups are not alone in seeing Tuesday’s events as a wake-up call. Groups that typically take no position on capital punishment want more to be done to protect the rights of those facing death sentences.
“Americans may want tough justice, but most do not want to be cruel or inhumane in executing even the most heinous of criminals, and this was exactly that,” Mark White, co-chair of the Constitution Project’s Death Penalty Committee and a former Texas governor, said in a statement.
Texas has executed 515 inmates since 1976, by far the most of any state. Oklahoma, with 111 executions, is second.
Addressing the questions raised in Oklahoma on Tuesday night must be a nationwide effort, White said. “To restore public confidence in our criminal justice system, and to ensure that the events of last evening are never again repeated, states should suspend lethal injections unless effective and transparent standards are in place to protect the constitutional rights of convicted prisoners,” he said.
Prisoners facing executions will continue to file lawsuits against states to get information about how they will be put to death, and what happened in Oklahoma may make judges more receptive to their arguments.
“States going forward with secret combinations and not revealing them is a recipe for disaster. You don’t have an adversarial process,” Dieter told msnbc. “A lot of states have this secrecy problem and I think that will be looked at askance by the courts.”
With executions scheduled in Texas, Missouri and Ohio within the next month, that theory will soon be put to the test. In the 32 states that still have the death penalty, the debate over whether it is possible to perform a humane execution will continue.