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A Volokh Conspirator on the Lockett Execution

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The Volokh Conspiracy is a favorite daily read for law professors far and wide, and justifiably so given the tremendous talent of its bloggers.  Today there is an entry on the failed Clayton Lockett execution.   I don't agree with all of it by any means, but it's worth a look.  Here's a sample:

I had noted, on TV, that Clayton Lockett lived for 15 years after he shot a 19-year-old girl and watched as friends buried her alive, and that the difference between 5 and 40 minutes to execute him needed to be placed in context. According to standard elite opinion, it is inappropriate even to mention his crime, unless one does so only as a lead-in to explaining that the horrific crime made some people -- the less elite, of course -- inappropriately bloodthirsty.

This time, however, the average American -- whom Justice Antonin Scalia sometimes refers to as "Joe Six Pack" -- may have some wisdom that we Ivy League graduates are missing.

To be clear: I am not a proponent of torturing people as they die, or of secrecy surrounding the drugs used in lethal injections. Once Clayton Lockett's execution was botched, the Governor of Oklahoma should have called off other pending executions until Lockett's death can be investigated and the state can learn from its mistakes. And she did. I do not advocate either intentional infliction of suffering during an execution or deliberate indifference to a significant likelihood of suffering.

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The Lockett execution is a classic example of a systems failure similar to what you might see in aviation accidents. It took a series of events to all go wrong, and then the inability of the prison staff to properly deal with them.

The description of how the execution team reacted appeared demonstrates that there is some needed training in what aviation calls "crew resource management" and definitely training in certain remote but possible contingencies i.e. prisoner does not die as planned.

As to the rest i.e. whether "cruel and unusual" punishment was inflicted or whether he deserved are really besides the point. Yes, he felt pain and yes he deserved it but the most important point was the State was not intentionally trying to cause him pain (even though he did deserve it).

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