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June 20, 2006

Oklahoma ruling on lethal injection's constitutionality

In the first major lethal injection ruling I have seen since the Supreme Court's Hill decision (basics here, commentary here and here and here), the Oklahoma Court of Criminal Appeals ruled yesterday that the state's lethal injection protocol is constitutional.  The unanimous ruling from the state's highest criminal court came in Malicoat v. State, No. D-1998-151 (Ok. Cr. App. June 19, 2006) (available here).  Here are some snippets from the close of the opinion:

This Court does not intend to denigrate Malicoat's anecdotal examples of potential problems with executions in Oklahoma.  We have previously noted that some eyewitness accounts of irregularities in past executions may create cause for concern. We again express our confidence that the Department of Corrections will continue to monitor and revise the execution protocol as may be necessary to ensure a swift, painless and humane execution.  However, these expressions of concern and confidence regarding the process do not undermine our legal conclusion that Oklahoma’s execution protocol does not violate the Eighth Amendment prohibition against cruel and unusual punishment.

Although this is an issue of first impression in Oklahoma, other jurisdictions have considered and rejected similar claims. After a lengthy analysis the Tennessee Supreme Court concluded, "we cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur.  We must instead examine the lethal injection protocol as it exists today." We agree.  Doing so, we have found that Oklahoma's execution protocol is not cruel and unusual.  We recognize that this issue is being litigated separately in the federal court system.  However, Malicoat is not entitled to a stay of execution while that litigation is pending.

Interestingly, Judge Lumpkin authored a separate little opinion which, through this final paragraph, may express a common perspective about lethal injection challenges by death row defendants:

Additionally, I find Appellant's request to be spared the imposition of his legally imposed punishment because it might cause him to suffer or experience pain unpersuasive (and rather ironic) as his murderous acts have been the cause of the ultimate pain and suffering for the victim and her family.

June 20, 2006 at 07:14 AM | Permalink


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The problem being that Lumpkin’s public relations gambit has absolutely no place in legal discussion of these issues. Indeed, it is, by far, the most disgusting display of politics in a legal opinion I have ever seen. At least everyone else tries to keep it subtle.

Posted by: S.cotus | Jun 20, 2006 9:31:45 AM

What is disgusting about politics in a legal opinion? Judges are just a particular kind of politician. (Do you think they got there because they were good auto mechanics?) I would prefer that they be open and honest about their politics, rather than "subtle." If by "subtle," you mean dishonest, then the Rule of Law will be the first victim of judges' dishonesty.

On the specifics of this one, I have seen a lot more "subtle" polics evinced in a thousand other opinions than this one.


Posted by: Mark | Jun 20, 2006 10:28:45 AM

What is wrong with Judge Lumpkin's opinion? Judges are supposed to exercise their common sense, and there is something distinctly nonsensical about condemned murderers wishing for a pleasant experience in the death chamber.

Posted by: Marc Shepherd | Jun 20, 2006 10:54:45 AM

So is this ruling basically saying that if someone were to start going to these executions and taking video or notes and keeping track of signs of conciousness (ie mistakes), then a similar case could be brought again?

Posted by: | Jun 20, 2006 12:29:43 PM

What is nonsensical about this concurrence is that outside the “proportionality” requirement of the 8th amendment, no inquiry is required regarding the nature of the crime. (And there is widespread agreement that the death penalty itself doesn’t violate the 8th amendment when someone is actually mudered.)

The 8th amendment is a last check on whether a lawful society and government, as a society, are capable of behaving civilly, regardless of whether some people are not. So, someone could be an absolutely awful person and would still be entitled to invoke the 8th amendment on his behalf. But this justice doesn’t get it. He seems to think that because of the nature of the crime, a defendant has somehow forfeited his 8th amendment rights. There is no such forfeiture clause in the text or history (or even precedent) of the 8th amendment.

Essentially what this just is arguing is that the nature of the crime that a person is accused of proportionately decreases his ability to assert constitutional rights in court. So, for example, a Christian accused of blasphemy (in a Muslim-dominated state) would not be able to invoke the 1st amendment, because his Christianity was so heinous and caused such grievous injury to the law-abiding Muslims (who had their land polluted by an uncivilized religion), that he gave up his right to assert the 1st amendment in court!

This just made it up, because he wants to score political points. Or “created it out of whole cloth” as those who want to pander to lay people might say.

As to the merits of the case, I have no position.

Posted by: S.cotus | Jun 21, 2006 10:05:47 AM

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