Regular Lackey claims are flat up against the fact that decades of delays, however cruel, [8] are certainly not unusual. Moreover, being based on the threat of death throughout long and uncertain delays, a Lackey claimant never protests that his execution date is unfairly prompt. He protests only that his wait has already been too excruciatingly long. This gives rise to a credibility problem that Lackey dismissals routinely exploit.
Dismissive courts excuse and even vaunt delay as due to an inmate's free choice to pursue the full panoply of review procedures; and they often note that the inmate had neither been the hapless victim of a last-minute stay, nor ever sought to expedite his death (as some do simply by abandoning appeals [9] ). Albeit scathingly, [10] lower federal and state court dismissals of Lackey claims on the merits thus impute that such a claim might succeed if brought after a series of maliciously engineered last-minute stays, or after requests for prompt execution had been denied. Even Thomas' testy concurrences with refusals to review Lackey claims leave room for such exceptions:
I remain "unaware of support in the American constitutional tradition or in this Court's precedent for the proposition that a defendant can avail himself of the panoply of appellate and collateral procedures and then complain when his execution is delayed." [11]
The term "Lackey claim" was coined in McKenzie v. Day, which set the dismissal standard: [12]
We are not confronted with a situation where the State of Montana has set up a scheme to prolong the period of incarceration, or rescheduled the execution repeatedly in order to torture McKenzie. The delay has been caused by the fact that McKenzie has availed himself of procedures our law provides to ensure that executions are carried out only in appropriate circumstances. . .It would indeed be a mockery of justice if the delay incurred during the prosecution of claims that fail on the merits could itself accrue into a substantive claim to the very relief that had been sought and properly denied in the first place.
In White v. Johnson, [13] the Fifth Circuit (in which Lackey arose), likewise affirmed:
[S]tates allow prisoners such as White to challenge their convictions for years. White has benefitted from this careful and meticulous process and cannot now complain that the expensive and laborious process of habeas corpus appeals which exists to protect him has violated other of his rights. . .White cannot expect Texas courts to know that he wants to get on with his execution without telling them. A motion for expedited review is also necessary so that reviewing courts can distinguish between strategic behavior on the part of the prisoner who quietly waits with the hope of asserting a Lackey claim later and bona fide claims of malicious or intentional state delay. [14]
These decisions invidiously shortchange the Eighth Amendment's blunt mandate that cruel and unusual punishment shall not be inflicted. The amendment is violated not only when a state maliciously or intentionally reschedules an execution at the very last in order to torture an inmate. It is also violated when a state inflicts such cruel and unusual punishment by lack of ordinary care.
As argued in point 4, the Eighth Amendment was violated by Oklahoma because it negligently inflicted a mock execution on Glossip. This circumstance does not apply to accidentally botched executions, caused by technological imperfections despite a state's due diligence. Even where the effect upon the condemned is precisely the same--i.e. where the result is a wholly unexpected last-minute or post-facto stay--negligence, but not accident, may sustain a Lackey claim, for which the remedy is vacation of the sentence of death.
The difference is due to the "shall not inflict" mandate in the Eighth Amendment, which generally captures culpable conduct re controllable consequences, but no more. Humane killing is not an oxymoron, but it is not as easy to humanely kill as it might seem, unless opiate overdoses or firing squads are deemed humane. [15] In Glossip itself, with the botched execution of Lockett front and center in evidence, the Supreme Court made it clear that, as once was the case re frequent failures of the hangman's noose, where rehanging was the rule, Oklahoma is today beyond reproach for the unfortunate shortcomings of its well-intended high-tech lethal drug protocol. The same cannot be said for the purely procedural neglects that caused Glossip's mock execution.
I need not argue that one such drastic goof per se establishes a strict or rebuttable Lackey claim, although I could. [16] I argue only that Glossip's mock execution establishes an Eighth Amendment violation sufficient to trigger a Lackey total-circumstances balancing of duties, interests, and injuries, which in his case warrants commutation. In this balancing, it would be trite to construe the immediate benefit of life prolonged for weeks or months as a windfall that squelches standing. The relief of reprieve is soon outweighed as the next dreaded deadline draws nigh.
Besides, there are other factors. Of far greater weight seems the pressing need to assure minimal standards of logistical competence in Oklahoma's carrying out of the death sentence.
3. Glossip's Mock ExecutionAfter the Supreme Court's June 29, 2015 denial of Glossip's lethal injection challenge, which became final on August 28, his execution was reset for 3 p.m. on September 16, 2015. On September 15, Glossip's attorneys filed a last-ditch claim that new evidence of innocence warranted a new trial, and sought a 60-day stay of execution. Three hours before the execution time, the Oklahoma Court of Criminal Appeals ruled:
Due to Glossip's last minute filing, and in order for this court to give fair consideration to the materials included with his subsequent application for post-conviction relief, we hereby grant an emergency stay of execution for two weeks.
By September 30, the new execution date, Glossip had been on Death Row for 17 years, and in the last year had endured three stays of execution, two of which were not revoked until after a last meal, and one of which he had not sought. But because Glossip's two late stays were due to his exercising review options, his Lackey claim was weak. On the current Supreme Court, it seems that only Breyer and Ginsburg deem this degree of long and uncertain incarceration arguably unconstitutional.
What happened on September 30 is different. Reportedly as follows, Oklahoma reset Glossip's execution date post-facto, to November 6 ( Oklahoma court stays all of state's scheduled executions , NewsOK, Oct. 2, 2015):
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