ST. LOUIS — The bungled execution in Oklahoma provides death-penalty opponents with a fresh example of how lethal injections can go wrong. But the odds of successfully challenging the nation’s main form of capital punishment will probably hinge on exactly what caused the murderer’s apparent agony.
If four-time felon Clayton Lockett suffered because of a collapsed vein or improperly inserted needle, that would suggest human error was to blame rather than a flaw in the execution system.
If the drugs or the secrecy surrounding them played a role, defense attorneys could have a wider legal opening to attack the injection method, plus powerful new evidence to press the U.S. Supreme Court to get involved, legal experts say.
A day after the execution went awry, attorneys for some death-row inmates began planning new appeals or updating existing cases based on events in Oklahoma.
Many called for moratoriums and independent investigations.
“Every prison is saying, ‘We have it under control, trust us,’ ” said Texas attorney Maurie Levin, who was preparing new briefs questioning that state’s execution practices. “This just underscores in bold that we can’t trust them.”
Lockett, 38, convicted of shooting a 19-year-old woman and watching as two accomplices buried her alive, was declared unconscious 10 minutes after the first of three drugs was administered Tuesday. Three minutes later, he began breathing heavily, writhing, clenching his teeth and straining to lift his head.
Authorities halted the execution, but Lockett died of a suspected heart attack more than 40 minutes after the process began.
Oklahoma Gov. Mary Fallin named a member of her Cabinet to lead a review. The Obama administration said the execution fell short of the humane standards required.
Courts, including the U.S. Supreme Court, have been reluctant to halt executions over arguments that they violate an inmate’s constitutional guarantee against cruel and unusual punishment.
Many states — Oklahoma, Texas and Missouri among them — purchase execution drugs from lightly regulated compounding pharmacies and refuse to name the supplier, whether the drug has been tested, or even who is part of the execution team.
In February, Washington Gov. Jay Inslee announced he was imposing a moratorium on all executions during his time in office. However he did not commute the sentences of inmates already on death row. That creates the potential for future governors to reinstate the death penalty in those cases.
If Tuesday’s problems are traced to a collapsed vein, the high court “probably won’t feel a lot more pressure to step in,” said Thomas Goldstein, an experienced Supreme Court lawyer who has represented death-row inmates. But if the injection chemicals themselves and the state’s secrecy emerge as important factors, “there will be great pressure for them to hear a case and require transparency.”
Madeline Cohen represents Charles Warner, an Oklahoma inmate who also was to be executed Tuesday, just hours after Lockett. She said she plans new appeals on behalf of Warner, whose execution was postponed for at least two weeks.