By Darla Shelden
City Sentinel Reporter
OKLAHOMA CITY, OK – Attorneys for Oklahoma death row prisoners have filed a Motion to Reopen the prisoners’ lethal injection protocol lawsuit, which was administratively closed in 2015 pursuant to a Joint Stipulation between the prisoners and the state.
On February 13, Oklahoma Governor Kevin Stitt, Attorney General Mike Hunter and Department of Corrections (DOC) Director Scott Crow announced the state’s plans to resume executions using the same three drugs previously used in the botched executions of Clayton Lockett and Charles Warner and the halted execution of Richard Glossip.
In their Motion to Reopen, the prisoners assert that the information thus far provided by state officials does not comply with the 2015 Joint Stipulation and that the new execution protocol is likewise incomplete. The filing points out that the Oklahoma DOC has not provided specific protocols and training for staff carrying out executions, an omission that prevents prisoners and the courts from assessing the constitutionality of the new protocol (pp. 3-4).
Oklahoma death row prisoners’ lethal injection litigation was initially filed on June 25, 2014, and administratively closed on October 16. 2015, in accordance with the Joint Stipulation.
Today’s filing can be accessed here:
Oklahoma’s Notice of Protocol can be accessed here:
Federal public defender Dale Baich, one of the attorneys for the death row prisoners issued the following statement:
“Oklahoma has a history of bungling executions. The state has obtained and used the wrong drug. It has failed to properly follow its own procedures, and the mistakes by team members have caused at least one prisoner to experience a cruelly painful death. Now state officials plan to resume executions using the same old procedure, but they have not demonstrated what will be different this time. Their lack of planning is a recipe for another Oklahoma execution disaster.
“Transparency and careful judicial review are the only ways to ensure humane, constitutional executions. But the courts cannot review procedures that don’t exist, and Oklahoma’s new protocol has a placeholder promising future plans where the plans should be. Rather than articulate substantive training requirements and other necessary procedures, the state’s Notice essentially says, ‘We’ll get around to that. Trust us.’
Today’s filing argues that the information provided by Oklahoma on February 13, additionally fails to satisfy the terms of the 2015 Joint Stipulation, because the stipulation requires the state to produce notice of investigations related to the ODOC’s execution procedures and the publicly-available results of such investigations.
The Motion to Reopen asserts that “complete and final ‘results’” of a grand jury investigation that examined Oklahoma’s troubled executions have not been disclosed (p. 3).
Lethal injection procedures in Oklahoma have been marked by extreme secrecy resulting in experimental, problematic and failed executions.
Oklahoma death row prisoners are seeking increased transparency and an improved lethal injection process before any executions proceed. A November 2015 poll by The Oklahoman showed that over half of Oklahomans support the state’s moratorium on carrying out executions:
In March 2016, a bipartisan group of prominent Oklahomans formed the Oklahoma Death Penalty Review Commission. According to The City Sentinel newspaper, based in Oklahoma City, the Commission was to conduct “the first-ever independent, objective and thorough review of the state’s entire capital punishment system.” The newspaper also endorsed a continued moratorium on executions.
The 2015 Joint Stipulation, filed by both the state and the death row prisoners, can be found here.
In the Joint Stipulation, the court ordered the state to provide the prisoners the following information:
- a) notice that investigations, known to the Office of the Attorney General, by any local, state, or federal authorities related to execution procedures of the Oklahoma Department of Corrections have been conducted;
b) the results, to the extent they are public, of the investigations referenced above in (a);
c) notice and copies of amendments, if any, to [the Execution Policy]; and
d) notice that the Oklahoma Department of Corrections will be able to comply with the express terms of the [Execution Policy].
(Order, ¶ 2(a)-(d)). The Stipulation further provides that, after receiving the required information, the Plaintiffs will have 14 days to move to reopen the case and 30 days thereafter to amend their complaint (Order, ¶¶ 4, 5). Finally, the Joint Stipulation provides that the state cannot seek an execution date until 150 days after providing the required information.
Oklahoma’s Problematic Executions and Attempted Execution:
- Clayton Lockett: On April 29, 2014, Clayton Lockett’s execution took over forty minutes, during which he writhed, gasped, and attempted to speak, according to media witnesses. A state-commissioned report later concluded that a catheter failure caused the lethal drugs, at some point, to infiltrate Mr. Lockett’s tissue instead of directly entering his bloodstream. As a result, the second drug failed to effectively paralyze Mr. Lockett, allowing witnesses to see his return to consciousness and the pain and suffering he experienced.
- Charles Warner: After granting certiorari to Glossip v. Gross, the U.S. Supreme Court did not stay the scheduled execution of Charles Warner, who was one of the Petitioners in that case. On January 15, 2015, Oklahoma executed Mr. Warner with what was purported to have been midazolam (a sedative), rocuronium bromide (a paralytic) and potassium chloride to stop the heart. However, the state disclosed in October 2015 that the wrong drug was used in that execution, in contravention of the state’s lethal injection protocol. The logs from the execution stated that potassium chloride was used, but after the attempted execution of Richard Glossip, the state revealed that potassium acetate had actually been used on Warner.
- Richard Glossip: On September 30, 2015, with moments to spare before the scheduled execution of Richard Glossip, the state announced it had the wrong drugs and cancelled the execution. Prior to his scheduled execution, Mr. Glossip received notice and subsequent confirmation that potassium chloride would be used in the three-drug procedure. However, it was discovered immediately before his execution that the state did not have potassium chloride, but instead had purchased potassium acetate by mistake.
Glossip v. Gross:
On June 29, 2015, in a 5-4 decision, the U.S. Supreme Court issued its opinion in Glossip v. Gross, ruling that the United States District Court for the Western District of Oklahoma did not abuse its discretion when it held that the prisoners had not demonstrated a substantial risk of harm as a result of Oklahoma’s use of the sedative midazolam as the first of three drugs in the three-drug protocol.
The case was brought by death row prisoners in Oklahoma, who, following the botched execution of Clayton Lockett in 2014, argued that the state’s use of midazolam instead of an anesthetic drug, created an “objectively intolerable risk of harm.”
Justice Alito wrote for the majority, joined by Justices Roberts, Scalia, Thomas and Kennedy. Justice Breyer, joined by Justices Ginsburg and Sotomayor, wrote a dissent. Justice Sotomayor also wrote a dissent, joined by Justices Breyer, Ginsburg and Kagan. As Justice Sotomayor notes in her dissent:
“By protecting even those convicted of heinous crimes, the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his or her own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price.”
Oral argument in Glossip v. Gross was heard at the Court on April 29, 2015. During argument, Justice Sotomayor commented she was “substantially disturbed” by statements in the state’s brief which were either “not supported” or “directly contradicted” by the facts (p. 35 of the transcript).
In Baze v. Rees (2008), the Court found that the three-drug protocol for lethal injection, which was widely used, was constitutional. However, for the first drug administered, Oklahoma substitutes midazolam for sodium thiopental, creating risk of “severe pain, needless suffering and a lingering death.” The second and third drugs in Oklahoma’s protocol are the same as the Baze protocol: a paralytic and potassium chloride, which stops the heart.
For additional background about the case, including amicus briefs, visit www.glossipvgross.com. To speak to an attorney for the Oklahoma death row prisoners or an expert in lethal injection, contact Tristin Aaron at [email protected] or call 718-938-4078.