Neil Gorsuch and the execution that was an “innocent misadventure” 

The man President Trump has nominated for the U.S. Supreme Court seems disturbingly similar to the justice whose seat he will take.

When Clayton Lockett was executed in Oklahoma in April 2014, he took 43 minutes to die in a botched execution that the prison warden said in court filings was “a bloody mess.” He was punctured at least 16 times while a doctor tried to find a vein in which to inject the three-drug lethal cocktail. Witnesses said the 38-year-old Lockett “was writhing and bucking” on the gurney when officials finally stopped the execution after about 20 minutes. Lockett then died of a heart attack. It was the first time the state had used a cocktail composed of midazolam, vercuronium bromide, and potassium chloride.

Tulsa World reported that the Department of Corrections Director Robert Patton said in a news conference that Lockett’s veins “exploded” before he died of a “massive heart attack.”

Lockett’s family filed a lawsuit against the state six months later, alleging that the execution team had violated Lockett’s Eighth Amendment rights against cruel and unusual punishment. A federal judge ruled in favor of the state, and the family appealed to the United States Court of Appeals for the 10th Circuit. The three-judge panel hearing the appeal was composed of Nancy Moritz, Gregory Phillips, and Neil Gorsuch.

Gorsuch, of course, is the man President Trump just nominated as a justice to the U.S. Supreme Court to fill the seat left vacant by Antonin Scalia. The unanimous decision by these three judges to rule against the family will not inspire hope that Gorsuch will be any more evolved in his thinking than the man whose seat he will take if confirmed.

In the ruling, the court says, “Simply put, the Eighth Amendment does not require ‘the avoidance of all risk of pain in carrying out executions.'” And, citing a U.S. Supreme Court case, Baze v. Rees, the opinion said the complaint “describes exactly the sort of ‘innocent misadventure’ or ‘isolated mishap’ that the Baze plurality excuses from the definition of cruel and unusual punishment.”

Perhaps even more disturbingly, while the opinion says it accepts the argument by lawyers for the family that the execution was “‘unnecessarily prolonged and horribly painful,’” it adds that “the problems during Lockett’s execution fit under Baze’s ‘isolated mishap’ exception for events that while regrettable do not suggest cruelty, or that the procedure at issue gives rise to a substantial risk of serious harm.’”

It’s not really a surprise, of course, that a judge President Trump would nominate to the U.S. Supreme Court would be a strong proponent of the death penalty, but it is especially disheartening in light of the fact that this seat should have undeniably been filled by President Obama. His pick, Merrick Garland, reportedly also is a death penalty proponent, but was not viewed by the legal community as extreme. But as for Gorsuch, according to SCOTUSblog, “It is clear that Gorsuch’s position in death penalty cases is likely to be quite close to Scalia’s, and very unlikely to make the court any more solicitous of the claims of capital defendants.”

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