Faculty Notes

Prof. Eric Freedman Quoted in New Republic Story on Death Penalty Review Panels as Face-Saving Shams

Eric M. Freedman, Maurice A. Deane Distinguished Professor of Constitutional Law

Don’t Trust Oklahoma’s Death Penalty Panel
By Lane Florsheim
The New Republic
May 8, 2014


Last week, Oklahoma Governor Mary Fallin nearly caused a constitutional crisis by ordering the execution of Clayton Lockett even after the state Supreme Court had stayed it. Instead, the Court relented, and Lockett suffered perhaps the worst botched execution in the nation’s history. Afterwards, Fallin asked the Oklahoma Department of Corrections to review the lethal injection procedure. If previous reviews by other states are any indication, however, Fallin’s effort will be a complete sham.

“You can’t charge an agency that’s been responsible for a problem to do an honest analysis of the problem and come up with a way to fix it,” says Jen Moreno, staff attorney at Berkeley Law, of the DOC-led evaluation.

Even Oklahoma corrections chief Robert Patton, who is partially in charge of conducting the investigation, told the New York Times that the review would “be perceived as more credible if conducted by an external entity.” The review has three focuses: Lockett’s cause of death, as determined by an independent pathologist in Texas; whether or not Lockett’s executioners followed the proper protocol; and how the state can change its protocol to make it safer.

“There has never been an objective study starting with a blank sheet of paper about how an execution might be done right,” says Eric Freedman, a constitutional rights professor at Hofstra University Law School. “In the particular case of Oklahoma, given Mr. Patton’s presence in his official capacity at the execution, he’s being asked to evaluate himself.” …

After the botched execution of Angel Diaz in Florida in December 2006, Governor Jeb Bush convened a commission on the administration of lethal injection. … At the end of the report, one of the commission’s “miscellaneous suggestions” was that the Florida DOC “explore other more recently developed chemicals” to possibly replace the three-drug cocktail it had been using.

What’s more, last October Florida altered the protocol again, substituting the untested drug midazolam hydrochloride for the drug pentobarbital, which has become increasingly scarce since its manufacturer refused to sell it in death penalty states. “Florida learned absolutely nothing,” said Freedman. “They conducted no visible independent study. There was no paper generated. It would appear, for all the public knows, that they looked around at their pharmacy and said, ‘Oh, well, midazolam, there’s lots of that, let’s use some of that.’” …

“This is not rocket science,” said Freedman. “An honest review would build on both mistakes that have been made in the past and easily available medical knowledge… [It] would let a governor get half a dozen scientifically trained professionals together in a room, and they could put this together fairly easily.”

Read the full story.