Comity, Finality, and Oklahoma's Lethal Injection Protocol

On October 10, 2014, the Oklahoma State Penitentiary opened its doors to the media to reveal a new state-of-the-art death chamber and announced that it had created an efficient execution facility. To complement the improvements to the prison architecture and the punishment technology, the Oklahoma legislature amended the state’s execution protocol to formulate effective procedures delineating what it considered appropriate pharmacology to render a constitutional execution. This advance in design and regulation, however, has not prevented subsequent maladministration by various members of the Department of Corrections’ execution teams. On January 16, 2015, Charles Warner was executed with the prison receiving and using the wrong drugs. On October 16, 2015, due to further operational mistakes, the District Court for the Western District of Oklahoma declared Richard Glossip’s case to be administratively closed. To investigate these systematic failings, a Multicounty Grand Jury was convened and it considered evidence from stakeholders in the execution process. Its Interim Report provided damning findings, which demonstrate that the death penalty is still struggling for institutional legitimacy. The continuation of botched executions, inappropriate alterations to the protocol, and the claims of punishment experimentation on non-consenting human subjects is contributing to a growing lack of confidence that Oklahoma can maintain a humane form of capital punishment through lethal injection. These unacceptable circumstances occurred primarily as a result of the uncomfortable relationship between the purported “science” of lethal injection and the “constitutional law” of lethal injection, and therefore a clear interpretation of the intellectual interplay of these two disciplines is required. Both the procedural review parameters provided by the principles of comity and finality, and the scientific methodologies of atomism and holism for determining the epistemology of the pharmacology, will prove illuminating. There are compelling questions concerning whether the adjudicative process can produce sound reasoning for assessing the death penalty. We are left with the situation in which there are still, and perhaps always will be, ardent circumstances challenging the constitutionality of Oklahoma’s lethal injection