From the very beginning, this execution was different.
On April 29, Katie Fretland and 11 other reporters gathered at the Oklahoma State Penitentiary in McAlester to watch not one but two death row inmates executed by lethal injection—the state’s first double execution since 1937. The night’s condemned, Clayton Lockett and Charles Warner, had lost a lengthy attempt to stay their executions until the state agreed to disclose the source of the new combination of drugs that would be used to kill them.
First on deck was Lockett, a 38-year-old convicted rapist and murderer. Fretland, who was covering the event for the Oklahoma Observer and the Guardian U.S., recalls that she and the other reporters received a warning from Oklahoma department of corrections spokesman Jerry Massie. “Don’t be surprised,” if the procedure takes longer than usual, she says Massie told them. Lockett was to be given a previously unused dosage of midazolam, a sedative, as the first in the state’s three-drug execution procedure, and the officials weren’t sure exactly how long it would take to kick in.
By the time the blinds were drawn on the Oklahoma Department of Corrections’ death chamber, allowing the reporters and other witnesses—including members of Lockett’s victim’s family—to see Lockett, he’d already been strapped to a gurnee and connected to an IV. A sheet covered his body from the neck down, making it impossible to see where, exactly, the needle had been inserted.
“It seemed to be taking a long time for him to go to sleep,” Fretland told The Daily Beast. Fretland had only observed one other lethal injection, two years prior in Oklahoma. The whole process, from the time the needle was inserted into convicted murderer Timothy Stemple, until he was confirmed dead, took a total of six minutes. But according to Fretland’s memory and the Oklahoma department of corrections’ record of this execution, Lockett remained conscious for 10 minutes after he was first injected with the midazolam. Three minutes after he was declared unconscious, Lockett started to move.
“He was trying to talk, ripping his head and shoulders off the gurney,” Fretland said. “It seemed like he was struggling, trying to get up. Everyone could see that happening right in front of us.”
That was when the blinds were closed, blocking Fretland and the other witnesses from what happened next. At 7:06 pm, 43 minutes after he was first administered the lethal cocktail, Lockett was pronounced dead from behind a curtain, away from public view.
This week, four months after Lockett’s botched execution, the American Civil Liberties Union along with the Guardian, the Oklahoma Observer, and Fretland, filed a federal lawsuit demanding that the Oklahoma department of corrections allow reporters and other witnesses to view the entire execution process, from the time the prisoner enters the chamber until he or she is pronounced dead.
“The state of Oklahoma violated the First Amendment, which guarantees the right of the press to witness executions so the public can be informed about the government’s actions and hold it accountable,” ACLU Staff Attorney Lee Rowland said when the suit was announced. “The death penalty represents the most powerful exercise of government authority. The need for public oversight is as critical at the execution stage as it is during the trial.”
In her report on Lockett’s execution, Fretland wrote that it had become clear pretty early on to those watching that the procedure had been botched. Charles Warner, whose execution had been scheduled for two hours after Lockett’s, was spared, at least temporarily. A spokesperson for the Oklahoma Department of Corrections declined to comment on the lawsuit for this story.
At the time, Oklahoma corrections officials said that the problems with the Lockett procedure began when the executioners were unable to find a suitable vein in his arms or feet. The sheet draped over Lockett’s body was meant to cover the fact that the executioners had resorted to inserting the IV in his femoral vein, in his groin. Later, however, an independent autopsy commissioned by Lockett’s attorneys found that Lockett’s veins were intact and there was no real reason to use his femoral vein. Moreover, the medical examiner found skin punctures on Lockett’s arms and both sides of his groin, suggesting that the problem had less to do with the failure of the lethal injection drugs than the lack of medical training of those carrying out the procedure.
Another autopsy, released Friday, shows that Lockett was in fact killed by lethal injection, countering the state's claims that Lockett died of a heart attack after the botched execution was stopped.
“Executioner jobs don’t necessarily attract the best and the brightest,” Mother Jones wrote following the release of the autopsy. “The oath doctors take to ‘first do no harm’ renders them ethically prohibited from participating in executions, so often the people who carry out lethal injections are just ordinary prison officials or, in some cases, employees with checkered pasts.”
The ACLU’s complaint, filed on Monday, cites the 2002 decision in California First Amendment Coalition v. Woodford, a similar case in which a number of news organizations sued the San Quentin Prison over its restricted viewing procedure for lethal injection executions.
“To determine whether lethal injection executions are fairly and humanely administered, or whether they ever can be, citizens must have reliable information about the … ‘procedures,’ which are invasive, possibly painful and may give rise to serious complaints,” read the Federal 9th Circuit court’s decision in that case. “This information is best gathered first-hand or from the media, which serves as the public’s surrogate.”
Lockett’s bungled execution is hardly an anomaly. According to a 2012 study published in the British Journal of American Legal Studies, lethal injections have a higher botching rate than any other execution method used in the U.S. since 1900. First Amendment Coalition director Peter Scheer says it’s this high potential for error, combined with the secrecy surrounding state pharmaceutical sources, that makes public access more important for lethal injections than other previous methods of execution.
“The greater the risk that the state government may botch an execution, the greater the need for the public access to witness what is being done,” Scheer told The Daily Beast.
That’s exactly why Fretland decided to join the ACLU’s effort.
“We were not allowed to see [Lockett’s] death, and now the public only has the state’s self-reported accounts of how he died,” Fretland said. “We need to be able to witness that.”