A lethal injection room at San Quentin
A lethal injection room at San Quentin (California Department of Corrections)

The botched execution of an Oklahoma inmate on Tuesday could breathe new life into lawsuits challenging state laws that keep certain information about lethal injections secret, according to death penalty experts.

Clayton Lockett, 38, appeared to writhe in pain and attempt to sit up during the execution attempt. After more than 40 minutes, Oklahoma Department of Corrections Director Robert Patton called off the execution. Lockett, whose veins had collapsed during the procedure, died from a heart attack minutes later.

Death penalty experts said the episode underscored what defense attorneys have been arguing all along: That secrecy over the source of the drugs used in lethal injections could cause inmates to suffer unnecessarily cruel and unusual punishment in violation of the Eighth Amendment.

“This case adds a lot to this factual pedestal on which to raise this issue higher and more strongly,” said Deborah Denno, a professor at Fordham University School of Law in New York who specializes in criminal procedure and the death penalty. “Courts are going to have to think twice, without coming back and providing more information about what’s going on. It’s pretty clear if this process in Oklahoma had been transparent, what happened … to Mr. Lockett would never have occurred.”

Oklahoma Gov. Mary Fallin has called upon the Department of Corrections “to conduct a full review of Oklahoma’s execution procedures to determine what happened and why.” She postponed the planned execution of a second man Tuesday night, Charles Warner, for 14 days.

White House spokesman Jay Carney on Wednesday said the case fell short of fundamental standards that executions be humane.

Immediately following Lockett’s death, the American Civil Liberties Union in Oklahoma called on courts to recognize constitutional concerns about administering lethal injections with drugs from unknown sources.

“We hope that courts will reconsider whether transparency about the drugs used in executions is required as a matter of law,” said Brady Henderson, that organization’s legal director.

Lockett, who was convicted of shooting a teenager and then watching an accomplice bury her alive, was the first inmate to receive a new drug cocktail in Oklahoma for the purpose of lethal injection—a combination of midazolam, vecuronium bromide and potassium chloride. Oklahoma and other states that administer the death penalty have been forced to come up with alternative lethal injection sources amid drug shortages.

But the identities of drug suppliers have remained secret under new laws in at last half a dozen states; defense attorneys, including those who represent Lockett and Warner, have sought to make that information public.

“Without knowing the actual source of the drug, one cannot determine whether or not the inmate is going to be subject to unnecessary pain and suffering and therefore suffer cruel and unusual punishment,” said Sarah Turberville, senior counsel of the criminal justice program at the The Constitution Project, which plans to release a May 7 report on the death penalty.

So far, attorneys have had modest success in the courts, even though Lockett’s case isn’t the first time that an execution hasn’t gone as planned.

The startling facts surrounding his execution could change the game, Denno said, who’s been following executions for 20 years.

“I’ve never seen a situation where the president of the United States has come out and said a botched execution is inhumane,” she said. “It’s going to be very hard for states now to turn a blind eye to these kinds of botches.”

Contact Amanda Bronstad at abronstad@alm.com.