by Lonnie Burton

On November 15, 2016, the United States Court of Appeals for the Tenth Circuit upheld the dismissal of a lawsuit brought by the estate of a prisoner who was executed by lethal injections in 2014, an execution the estate alleged was botched and which caused the prisoners immense pain for the 43 minutes of the "prolonged" procedure.

Clayton Lockett was on Oklahoma's death row for the 1999 kidnapping, rape, and murder of 19-year-old Stephanie Neiman. For the next 21 years while Lockett sat on death row, the state of Oklahoma executed 93 other prisoners by lethal injection using a drug cocktail that included sodium thiopental (to induce unconsciousness), pancuronium bromide (to paralyze the prisoner), and potassium chloride (to induce cardiac arrest and stop the heart).

However, in 2010 states began encountering difficulty obtaining sodium thiopental. In 2014, just prior to the date set for Lockett's execution, Oklahoma substituted midazolam for sodium thiopental, a drug never before used in an execution. Later, the state also decided to substitute vercuronium in place of pancuronium bromide. In short, Oklahoma planned to use a drug cocktail on Lockett untested and previously unused in any execution.

Lockett's execution took place on April 29, 2014. A procedure that usually lasts between 6-12 minutes, lasted for an excruciating 43. According to court records, 13 minutes into the procedure, Lockett began "twitching and convulsing." He raised his head and tried to speak, with some observers hearing him say "something's wrong." Soon afterward, he "began to buck and writhe, as if he was trying to raise himself from the gurney ... [while] clenching his teeth and grimacing in pain."

The doctor in charge was set to call off the execution, believing insufficient drugs entered Lockett's system due to the IV needle collapsing the injection vein in Lockett's leg. But 10 minutes after the execution was "halted," Lockett was declared dead, 43 minutes after the procedure began.

Lockett's estate sued numerous state and prison officials in their individual capacities, including Governor Mary Fallin, the prison warden, and the unnamed doctor in charge of the execution. The complaint alleged eight separate constitutional violations, including torture, human medical experimentation, failure to train and supervise, and due process infringements.

The defendants moved for summary judgment, which the U.S. District Court for the Western District of Oklahoma granted on qualified immunity grounds. Lockett's Estate appealed, and the Tenth Circuit, in an opinion joined by recent U.S. Supreme Court nominee Neil Gorsuch, affirmed.

The appellate court first found that Dr. Doe -- so identified by the court -- was entitled to qualified immunity because, although a private party, he was hired by a government entity to do a job for which a permanent government employee would have received qualified immunity.

As for the Eighth Amendment torture claim, the court held that since the death penalty is constitutional, lawful means must exist to carry it out. Recognizing that "[e]veryone acknowledges that Lockett suffered during his execution," the court nonetheless described it as an "innocent misadventure" or "isolated mishap" unworthy of Eighth Amendment protection. Because the complaint did not allege that defendants intended to cause Lockett pain, the Tenth Circuit held that an Eighth Amendment violation could not be sustained.

Finally, the court ruled that the Estate's remaining claims surrounding the prolonged execution and experimental drug protocol failed to state a claim for which relief could be granted. The court found there were no cases clearly establishing an Eighth Amendment requirement to hasten Lockett's death quicker than occurred.

"Oklahoma did not switch to midazolam in an effort to inflict additional pain," the court wrote. Because the states were having trouble acquiring the normal drugs used in lethal executions, the court reasoned that it was logical to assume then that some other drug combination, "potentially including a new drug combination, must be constitutional."

With respect to the Estate's procedural due process claim that Lockett had a protected liberty interest in the use of an "ultrashort-acting barbiturate drug" during his execution, the Tenth Circuit held that there was nothing in the record showing that Oklahoma officials denied Lockett the right to challenge the protocol either administratively or in state court.

"Because Lockett had the opportunity to exercise his Due Process rights to challenge his drug protocol and failed to do so, Lockett's Estate cannot now complain of a liberty-interest violation," concluded the court. The order of the district court dismissing the case was therefore affirmed. See: Estate of Lockett v. Governor Mary Fallin, No. 15-6134 (10th Cir. 2016).

(NOTE: The case was joined by 16 amici curiae, including the ACLU, Doctors for the Ethical Practice of Medicine, and the Consulate on Correctional Healthcare to the U.S. Dept. of Justice, Civil Rights Division.)

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