Senate Bill 794 passed the Oklahoma Senate Judiciary Committee by a vote of 9-0 this week. The bill—matched by an identical one that passed a House committee—is something of a contingency plan. It’s not an evacuation guide should natural disaster strike, nor does it proscribe a plan of action in the event of, say, a terrorist attack. Bill 794 is the state legislature’s idea of a plan B should the state’s current method of killing people be deemed illegal.
Oklahoma has had its issues with executions. Last year, the state’s execution of Clayton Lockett by lethal injection was catastrophically botched. Lockett, a 38-year-old convicted murderer, was injected with a sedative and then a drug concoction that would stop his breathing and his heartbeat. Soon after he was injected, Lockett began “convulsing violently, his head and chest rising up off the gurney multiple times as he yelled, ‘Oh, man.’” The physician carrying out the procedure aborted it, but eventually declared Lockett dead anyway after 43 minutes.
As a result of Lockett’s case, the state’s death row inmates have brought a legal challenge before the U.S. Supreme Court. The state’s lethal injection method, they maintain, is cruel and unusual punishment, and thus in violation of the U.S. Constitution per the Eighth Amendment. They want it outlawed.
The state’s legislators disagree, but are prepared just in case the challenge is successful. Executions are on hold pending the results of the case. In the event lethal injection is ruled unconstitutional, Senate Bill 794 “calls for the use of nitrogen hypoxia, or gassing death by nitrogen.” This essentially means putting the inmate in a gas chamber, which the legislature’s fiscal analysis indicates would cost $300,000 to build at the Oklahoma State Penitentiary. Ryan Kiesel, the director of the Oklahoma branch of the ACLU, says the method—which is legal in four states, though has never been used, and is outlawed in others even as a means of euthanizing animals—is simple: “You are essentially suffocating them.”
But the bill doesn’t end there. There is a Plan C involved. In the event that both lethal injection and nitrogen hypoxia are made illegal, it dictates that the sentence should be carried out by electrocution. If the electric chair was good enough for Ted Bundy, it’s good enough for you. Oklahoma joins Tennessee, which passed a law last year, in the quest to bring back the chair.
But wait—there’s even a plan D. If electrocution is also deemed cruel and unusual (which seems eminently possible considering the whole burning-flesh, smoke-billowing-from-your-head thing), the citizens of Oklahoma need not fear. The bill calls for their death row inmates to be executed by firing squad.
If we leave aside the fact that there are elected officials in the United States who, when told that the first three methods of killing people they come up with are too cruel, propose a fourth, there’s something strange going on here. These methods are quite archaic, hauled out from their place in storage next to the rack and the guillotine and the other things we decided were a bit passé. The lawmakers in Oklahoma (and Utah) are proposing that in the year 2015, in the United States, we stand someone up against a wall and shoot them until they stop moving.
Of course, Oklahoma’s high regard for the old school macabre runs in stark contrast to the general trend in these matters. The U.S., as the Western world’s preeminent executioner, has been on a more than century-long quest to find a humane, minimally cruel-and-unusual way of putting people to death.
But what exactly is cruel and unusual? In the 1800s, execution by hanging was standard procedure in the U.S. Now it’s too cruel. Throughout the twentieth century, the electric chair got plenty of use. Now it’s unusual, at least in most places. It seems awfully subjective, almost like people are making it up as they go along—which, of course, they are. And this leads to mistakes. Lethal injection is the method of execution that is most likely to be botched, with an error rate of 7 percent. Are those mistakes, which yield horribly painful, drawn-out executions that are most certainly cruel, enough to outlaw the practice altogether?
The cruel and unusual factor is crucial because it speaks to the legitimacy of the act. When we accept capital punishment as a society, we are accepting at least two things implicitly: 1) that the government has the power to take the life of a citizen; and 2) that the government is morally right—be it for the protection of others, retributive justice, or whatever reason—to carry out this action. Part of judging the moral value of it is whether it is proportional to the crime. Another part is “set[ting] capital punishment apart from the heinous crimes it is thought to condemn.”
Most of the people on death row are there for killing someone. What is the difference between their act and that of the government? In a word, legitimacy. The state governments of Oklahoma and 33 other states are imbued with the power to execute citizens by those same citizens, just as they are empowered to imprison people and collect taxes from them. But just as crucially, the government is seen as administering death in a way that is not brutal or chaotic but clean, clinical, and above all, just. The doctor overseeing the lethal injection is no criminal, after all. He’s a state employee.
All of these concerns, from the powers of government to the moral significance of how you go about putting someone to death, seem lost on the legislators of Oklahoma. Gas them, shock them, shoot them: it makes no difference to the Sooner State. Maybe Oklahomans have admitted something the rest of America is reluctant to: that there really isn’t a humane way to kill someone. After all, we humans have plenty of practice and have yet to find one.
The two bills head to the floor in both houses for debate, and likely a vote. The firing squads may well be removed, perhaps to be replaced by drawing and quartering, before the bill is passed. But regardless of how the Supreme Court rules, Oklahoma will find a way.