Oklahoma ruling on lethal injection’s constitutionality

In the first major lethal injection ruling I have seen since the Supreme Court’s Hill decision (basics here, commentary here and here and here), the Oklahoma Court of Criminal Appeals ruled yesterday that the state’s lethal injection protocol is constitutional.  The unanimous ruling from the state’s highest criminal court came in Malicoat v. State, No. D-1998-151 (Ok. Cr. App. June 19, 2006) (available here).  Here are some snippets from the close of the opinion:

This Court does not intend to denigrate Malicoat’s anecdotal examples of potential problems with executions in Oklahoma.  We have previously noted that some eyewitness accounts of irregularities in past executions may create cause for concern. We again express our confidence that the Department of Corrections will continue to monitor and revise the execution protocol as may be necessary to ensure a swift, painless and humane execution.  However, these expressions of concern and confidence regarding the process do not undermine our legal conclusion that Oklahoma’s execution protocol does not violate the Eighth Amendment prohibition against cruel and unusual punishment.

Although this is an issue of first impression in Oklahoma, other jurisdictions have considered and rejected similar claims. After a lengthy analysis the Tennessee Supreme Court concluded, “we cannot judge the lethal injection protocol based solely on speculation as to problems or mistakes that might occur.  We must instead examine the lethal injection protocol as it exists today.” We agree.  Doing so, we have found that Oklahoma’s execution protocol is not cruel and unusual.  We recognize that this issue is being litigated separately in the federal court system.  However, Malicoat is not entitled to a stay of execution while that litigation is pending.

Interestingly, Judge Lumpkin authored a separate little opinion which, through this final paragraph, may express a common perspective about lethal injection challenges by death row defendants:

Additionally, I find Appellant’s request to be spared the imposition of his legally imposed punishment because it might cause him to suffer or experience pain unpersuasive (and rather ironic) as his murderous acts have been the cause of the ultimate pain and suffering for the victim and her family.