Indians of all nations are skeptical of the federal government. This is why, even though most tribal societies practiced capital punishment in one form or another, tribal governments have not rushed to opt in to the federal death penalty.
Oklahoma Indians, of all peoples, understand that their state government is even less trustworthy than the federal government. Unfortunately for the men scheduled to be the subjects of a dual execution the night of April 29, Indians didn’t get to judge the state of Oklahoma’s legal battle to keep the methods secret.
The underlying problem is not peculiar to Oklahoma. Because the United States is one of five nations that carry out most of the executions world wide, and because world opinion considers the death penalty to be a human rights violation, the U.S. is subject to what amounts to sanctions for human rights abuses. Drug companies will not sell their wares for the purpose of killing people. With lethal injection being the most common method of execution in the US, there has been a serious shortage of the drugs necessary to carry it out.
For this reason Oklahoma did not wish to divulge either the drugs to be used or the source of those drugs. Oklahoma politicians were so determined to keep their secrets that an order by the Oklahoma Supreme Court resulted in defiance by Republican Gov. Mary Fallin and an impeachment resolution against five justices of that court introduced by Republican State Representative Mike Christian.
No politician ever lost a vote in Oklahoma by wanting to be more callous to criminals than the law allows, and so the actions of Fallin and the ironically named Christian were par for the course. Oklahoma is one of two states (the other is Texas) that have separate courts of last resort for civil and criminal cases. The Oklahoma Court of Criminal Appeals decided it could not stay an execution because of a civil case demanding information about the execution protocol. When the Oklahoma Supreme Court did, citing the common law rule of necessity, Governor Fallin became determined to disregard her own state’s court.
The Supreme Court delivered an opinion on the hurry-up to avoid the constitutional crisis, and the identity of the drugs was ordered divulged, but not the sources. The interest of the person being executed in knowing someone competent produced the drugs was apparently insufficient to override the interest in the drug provider in being protected from the public disgrace of being involved in a legal killing. The company’s identity is protected.
The state of Oklahoma spent about 43 minutes unsuccessfully attempting to kill Clayton Derrell Lockett. After a person alleged to be a doctor had pronounced Lockett to be unconscious, the executioners started with the killing drugs, which would be painful if he were not unconscious. The supposedly unconscious man was struggling to sit up and say something like “Man, something is wrong…” when the minions of the state of Oklahoma pulled the curtain to cut off the view of the “official witnesses.”
Think about that. They designate members of the media to watch what happens in the execution chamber because we are too civilized to do public executions but we need to know what is being done in our name. Something goes wrong, and the “official witnesses” are cut out of the process and we are once more asked to trust the state government. Think about that.
According to the men behind the curtain, some time after the attempt to kill Lockett had turned into an attempt to revive him, he died of a heart attack. How convenient.
In light of the spectacular failure of Oklahoma’s secret killing procedure, Gov. Fallin issued an executive order to put off the next human science experiment, originally scheduled for later that night, for two weeks. The next experiment will be on a fellow named Charles Fredrick Warner.
Neither of these men challenged their criminal convictions, so they are probably the scum of the earth. Since we, the collective we, have decided to kill them in ways that can turn spectacularly gruesome, we should ask how probably?
I used to put a trick question on some of my criminal justice exams. After inserting some statistical noise to make the distractors (incorrect answers) plausible, I asked what is the probability, in a state that uses the death penalty over an infinite amount of time, that an innocent person will be executed?
The answer is, of course, 100 per cent. Since the United States is in the top five executioner states in the world, we have lots of opportunity for error. Here in Texas, we killed a man for setting a fire that the best scientific evidence showed was not set by anybody.
It would be pretty hard to tell how many mistakes our criminal justice system makes in general but everybody knows it makes mistakes, and we know some of the common causes: false confessions by disturbed individuals, mistaken eyewitnesses, prosecutors hiding evidence. Death cases get more attention than others, leading to the shocking statistic that while death sentences are only one tenth of one percent of all criminal convictions, they are about 12 per cent of exonerations.
The special status of persons under threat of execution, and the fact that they are relatively few, allows an analytical tool from the medical profession, survival analysis, to develop a very conservative estimate of the proportion of false convictions in death cases. (In this statistical method, an exoneration counts as a “death’ in normal survival analysis while remaining in prison is “survival.”)
In a bizarre coincidence, the results of a survival analysis of US death rows came to my attention in the Proceedings of the National Academy of Sciences on the same day the state of Oklahoma tortured Clayton Lockett until he had a heart attack. See what these peer-reviewed scientists concluded:
The rate of erroneous conviction of innocent criminal defendants is often described as not merely unknown but unknowable. We use survival analysis to model this effect, and estimate that if all death-sentenced defendants remained under sentence of death indefinitely at least 4.1 per cent would be exonerated. We conclude that this is a conservative estimate of the proportion of false conviction among death sentences in the United States.
I don’t doubt that the US gives fairer trials before killing people than the others of the top five executioner states: China, Iran, Iraq, and Saudi Arabia. Still, I understand why tribal governments are not lining up to subject their citizens’ lives to this process.
I’ve spent a first career working in the criminal justice system and a second career teaching about it. I would not trust my life to that system, nor would most of the people working within it, including prosecutors, though they don’t find it politic to say so in public.
If I trusted the government to decide whom to kill, I’m still not sure I would trust the government’s word that they are not torturing criminals in the process. Oklahoma Gov. Mary Fallin is just the latest in a long line of politicians—to be nonpartisan, I’ll remember that Arkansas Gov. Bill Clinton was another—to use the suffering of people who probably deserved some suffering to advance their political careers.
Until you would trust your own life to the process, it would be best not to reward politicians so eager to sacrifice others on the altar of probability. If what happened in McAlester, in Oklahoma the night of April 29 was not shameful, why did they pull the curtain?
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.