Oklahoma, Meet Massachusetts

The death penalty has gotten quite a bit of press of late, most recently as a result of Oklahoma's botched execution of Clayton Lockett in April. But, as a New York Times opinion feature pointed out earlier that month, capital punishment has been declining in frequency for years now.  Between 2007 and 2013, six states  abolished capital punishment through legislation, often citing its cost, its documented racial bias, the possibility of executing an innocent person, and its ineffectiveness. Still, 32 states  maintain death penalty statutes, and as executions like Mr. Lockett's show, it can have horrific results.

A look at how Massachusetts, a liberal state whose population actually resisted the abolition of capital punishment in the early 1980s, finally rid itself of the death penalty is instructive for why states like Oklahoma continue to have trouble joining the rest of the developed world on the issue. In 1980, in the case District Attorney of Suffolk County vs. James Watson, the Massachusetts Supreme Judicial Court ruled that, “in light of contemporary standards of decency,” and “the arbitrariness and discrimination inherent in the application of capital punishment,” the death penalty was a "cruel" punishment that ran afoul of Article 26 of the Declaration of Rights of the Massachusetts Constitution, which forbids "cruel or unusual" punishment.

This ruling led Massachusetts voters to approve a 1982 amendment to the Commonwealth's Constitution reading, in part, “no provisions of the Massachusetts Constitution ‘shall be construed as prohibiting the imposition of the punishment of death.'" The legislature then quickly passed a bill, signed by conservative Governor Ed King, re-establishing capital punishment.

In 1984, however, in Commonwealth vs. Abimael Colon-Cruz, the SJC again invalidated the Commonwealth's death penalty. As it turned out, the law passed hastily after the 1982 referendum was poorly written, and conflicted with a United States Supreme Court precedent set 16 years earlier in United States v. Jackson. As the SJC's four-to-three majority explained, because defendants could only receive a death sentence if they were tried by a jury, and not after a guilty plea, the statute "impermissibly burden[ed] a defendant's right against self-incrimination and his right to a jury trial." In other words, the law gave criminal defendants a perverse incentive to forgo their constitutional rights to spare their lives. Since Colon-Cruz, Massachusetts has been death penalty free.

What makes this history noteworthy is the key role the judiciary played in pulling Massachusetts toward abolition. As the dissenting justices in the case wrote, the Court had chosen to ignore the express will of the people and invalidate a penalty that Massachusetts citizens had inserted into the Commonwealth's Constitution. In a state with appointed and not elected judges, however, a majority of the SJC had the independence to uphold the principles underpinning the criminal justice system despite the opinion of a majority of voters. Yes, the legislature helped by writing a grossly inadequate statute, but the SJC only struck it down by one vote, a testament to how unpalatable it is for even appointed justices to void the people’s decisions.

Now back to present day Oklahoma. What makes the useless suffering which Mr. Lockett endured at the hands of the state most unfortunate is that it came after both he and the man due to be executed after him, Charles F. Warner, had appealed their executions on the grounds that the method was unconstitutional. In what turned out to be a prescient warning, the men's lawyers argued that, because Oklahoma was keeping the “lightly-regulated” source of the drugs, a compounding pharmacy, a secret, the condemned had no way of knowing whether their executions would be humane or not.  Mr. Lockett's, of course, was far from it; and though the heinousness of his crime makes Mr. Lockett's death far from a tragedy, his execution exemplified the type of cruelty that the criminal justice system seeks to punish, not replicate.

A truly responsible Oklahoma Supreme Court, one like the Massachusetts SJC in 1984, would have stayed the men's executions until the State had revealed the source of the drugs and after the procedure's efficacy had been established. After all, other executions with untried drug cocktails have caused visible pain, and the idea that Oklahoma's cobbled-together method could pass constitutional muster is ludicrous on its face. Seeing such reasoning from an Oklahoma bench is probably wishful thinking–though a lower court had sided with the condemned men.  At the very least, however, the State Supreme Court owed Mr. Lockett and Mr. Warner, to say nothing of all Oklahomans with an interest in upholding the rule of law, a decision.

As the New York Times writes, however,  Mr. Lockett and Mr. Warner instead met a “Kafkaesque legal maze,” as neither the Oklahoma Supreme Court nor the Court of Criminal Appeals would issue them a stay of execution so that the issue of drug secrecy could be decided. And when the Oklahoma Supreme Court finally did issue a stay, Governor Mary Fallin said she would ignore it and one State Representative “said he would seek to impeach the justices.” The Oklahoma Supreme Court eventually ruled against Mr. Lockett and Mr. Warner, but the pressure from outside forces was unmistakable.

In short, the process that led to another bad mark on America's capital punishment record could not have been more different from the one that eliminated the practice in Massachusetts. Instead of principled jurists acting within a system that insulated them from politicking, in Oklahoma, indecisive judges acting within a system of retention elections tried to avoid making the responsible decision.  Until states like Oklahoma reform their systems to encourage more constitutional analysis and less politics, or until the U.S. Supreme Court acts decisively on current death penalty practices, state court systems will not be a locus of meaningful death penalty reform.

Nelson L. Barrette '17, a Crimson editorial writer, lives in Winthrop House. His column will appear every two weeks this summer.