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Oklahoma just neutered its state Supreme Court
Goodbye, judicial independence
 
Clayton Lockett and Charles Warner are the two convicted murderers at the heart of Oklahoma's issue.
Clayton Lockett and Charles Warner are the two convicted murderers at the heart of Oklahoma's issue. (AP Photo/Oklahoma Department of Corrections)

Judicial independence died last week in Oklahoma. It was killed by shortsighted members of the executive and legislative branches of government, and by gutless judges.

The sorry story began on Monday, April 21, when the Oklahoma Supreme Court stayed the execution of two convicted murderers so that the justices could evaluate the legality of the state's injection secrecy law. That law had allowed state officials to prevent the disclosure of basic information about the drugs used in lethal injections, and was declared unconstitutional late last month by a trial judge who said, "I do not think this is even a close call."

Things got complicated because there are two high courts in Oklahoma — one that focuses on "criminal" matters and one that focuses on "civil" matters. The criminal court, the Oklahoma Court of Criminal Appeals, said it had no jurisdiction to look at the injection secrecy matter. The civil court, the Oklahoma Supreme Court, said that the Court of Criminal Appeals did have jurisdiction.

There was open conflict between the courts. The state Supreme Court criticized the Court of Criminal Appeals for not accepting the appeal and for not halting the executions. The criminal appeals court criticized the state Supreme Court for intruding upon what its judges considered the purely "criminal" matter of execution protocols.

The open warfare within the state judiciary — unseemly, in particular, in the context of capital cases — surely contributed to the chaos that came next.

Before the sun had set Monday, just hours after the Oklahoma Supreme Court halted the executions, the Republican governor of the state, Mary Fallin, proclaimed that the executive branch would not honor the judicial stay preventing the executions. The Supreme Court's "attempted stay of execution is outside the constitutional authority of that body," she declared, so "I cannot give effect to the order by that honorable court."

Gov. Fallin then said she would recognize only the power of the Oklahoma Court of Criminal Appeals to guide her in proceeding with the execution of one of the prisoners, Clayton Lockett, on April 29. In other words, the head of the executive branch of state government had just proclaimed that she would not recognize a duly issued order by the state Supreme Court because she did not agree with it and because the other high court in the state, which did not favor a stay of execution to fully evaluate the injection secrecy issues, stood ready to implement her will.

The story gets worse.

On Tuesday, the day after Gov. Fallin went rogue, a Republican state lawmaker, Rep. Mike Christian, introduced impeachment proceedings against the five state Supreme Court justices who had voted for the stays of execution. In Christian's view, the justices had used "unsupportable arguments regarding constitutional rights" in a way that "should be considered a violation of the oath of office because it constitutes a willful neglect of duty and incompetence." In other words, one day after the executive branch violated separation of powers principles, and overtly threatened the judiciary for an unpopular decision, the legislative branch did as well.

And that's when the Oklahoma Supreme Court simply, tragically, caved in to the political pressure.

On Wednesday, just two days after it had issued its stay, the five justices responsible for that stay declared that the injection secrecy law was, in fact, constitutional. Never mind, these justices suddenly said after weeks of litigation in which they had expressed doubts about the constitutionality of the secrecy law — the executions may now proceed.

So the executions of Lockett and another condemned man, Charles Warner, now will presumably proceed. The independence and authority of the Oklahoma Supreme Court has been broken, the justices on it whipped into line like the rest of the political power structure in the state. The Oklahoma Court of Criminals Appeals will control (to the delight of prosecutors) the resolution of arguably "civil" matters having to do with injections (like whether state officials can continue to hide material information about lethal drugs from the media and the public).

And the architects of all of this, the elected officials and the mob they dutiful represent, will delight in the fact that "justice" finally has been done to the two murderers at the heart of this story. Perhaps they didn't deserve any better — they committed heinous crimes, and there are no questions about their guilt or the fairness of their trials. But there are plenty of other Oklahomans who will suffer going forward under a rule of law where the courts can be cowed into submission when they render unpopular decisions on controversial issues.

It was a bad week in Oklahoma — at least for anyone who values a strong and fearless judiciary.

 
Andrew Cohen is a contributing editor at The Atlantic, a fellow at the Brennan Center for Justice, and a legal analyst for 60 Minutes and CBS Radio News. He has covered the law and justice beat since 1997 and was the 2012 winner of the American Bar Association's Silver Gavel Award for commentary.

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