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In the crosshairs of conscience: John Kitzhaber's death penalty reckoning

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To cope with his dread, John Kitzhaber opened his leather-bound journal and began to write.
It was a little past 9 on the morning of Nov. 22, 2011. Gary Haugen had dropped his appeals. A Marion County judge had signed the murderer's death warrant, leaving Kitzhaber, a former emergency room doctor, to decide Haugen's fate. The 49-year-old would soon die by lethal injection if the governor didn't intervene.
Kitzhaber was exhausted, having been unable to sleep the night before, but he needed to call the families of Haugen's victims.
"I know my decision will delay the closure they need and deserve," he wrote.
The son of University of Oregon English professors, Kitzhaber began writing each day in his journal in the early 1970s. The practice helped him organize his thoughts and, on that particular morning, gather his courage.
Kitzhaber first dialed the widow of David Polin, an inmate Haugen beat and stabbed to death in 2003 while already serving a life sentence fo…

Oklahoma: Appeals court rules Lockett execution was not cruel and inhumane

Diagram of Clayton Lockett's 2nd autopsy
Diagram of Clayton Lockett's 2nd autopsy
Lengthy 2014 execution at McAlester involved an improperly inserted IV

DENVER — An appeals court ruled Tuesday that the controversial 2014 execution of an Oklahoma man, which lasted 43 minutes, was not cruel and inhumane.

“Everyone acknowledges that (Clayton) Lockett suffered during his execution,” the 10th U.S. Circuit Court of Appeals in Denver stated in a 32-page ruling.

However, what Lockett’s estate alleged occurred was “the sort of ‘innocent misadventure’ or ‘isolated mishap’” that the U.S. Supreme Court has excused from the definition of cruel and unusual punishment, the appeals court said.

“Some risk of pain is inherent in any method of execution — no matter how humane,” the appellate judges wrote, citing a Supreme Court decision in an unrelated case.

Lockett’s estate had appealed a 2015 decision in Oklahoma City by U.S. District Judge Joe Heaton dismissing the estate’s lawsuit. It was against state officials and a McAlester doctor who was an executioner.

Tuesday’s 3-0 ruling affirmed Heaton’s decision.

The drug midazolam was used to render Lockett unconscious before two other drugs were administered to bring about death.

“No state ever used that protocol,” the appellate judges wrote.

Lockett’s estate alleged, among other things, that what occurred at the execution was torture and human medical experimentation.

Heaton’s decision stated that Lockett had no clearly established constitutional right to the use of any specific drugs for the lethal injection that was used.

A state investigation later concluded the drugs did not enter Lockett’s vein due to an IV that executioners improperly placed.

Lockett was put to death for the 1999 murder, near Perry, of Stephanie Neiman.

The execution was the focus of international attention and was condemned in some quarters.

The American Civil Liberties Union, Doctors for the Ethical Practice of Medicine and numerous doctors submitted arguments to the appeals court as “friends of the court.” Among those doctors is John Henning Schumann, a professor of medicine at the University of Tulsa.

Lockett’s attorneys also claimed that his right to due process was violated because his attorney was not allowed to sit next to him in the death chamber.

“Apparently, plaintiff claims that Mr. Lockett had a right to communicate with his counsel as he lay on the gurney in the execution chamber, so that he could potentially commence litigation about whatever aspect of the execution process arguably violated his rights,” Heaton wrote in his decision last year. “Plaintiff cites no authority which gets remotely close to supporting that remarkable assertion, and the court has considerable doubt whether any constitutional violation of that sort even arguably exists.”

Heaton dismissed all claims against members of the execution team, Department of Corrections Department officials and Gov. Mary Fallin.

Source: Tulsa World, November 15, 2016

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