Oklahoma Has a Drug Shortage After Wasting Leftover Injections on Dead Inmates

While questions about the legality of acquiring lethal injections drugs in Oklahoma only delay executions in Missouri for a few hours, in Oklahoma, the difficulty of procuring drugs has delayed two executions until next month, according to Reuters.

Clayton Lockett, who was initially scheduled to be executed Thursday, was reset to April 22 by the Oklahoma Court of Criminal Appeals. Charles Warner was originally scheduled for March 27, and was postponed until April 29, according to court records filed Tuesday and hosted by The Washington Post .

Drug companies are increasingly reluctant to supply drugs for prisons and departments of corrections to use for executions. European companies are banned from trading equipment or products that could be used for “capital punishment, torture or other cruel, inhuman or degrading treatment or punishment,” which disrupted supplies of sodium thiopental and propofol, anesthetics used in lethal injection drug cocktails.

Driven by shortages, states have been forced to look elsewhere for lethal injection drugs, which raises other legal questions. Missouri had been relying on a compounding pharmacy in Oklahoma for pentobarbital, until a federal judge temporarily blocked the pharmacy from selling the drug to the state, while Missouri’s death penalty protocol —including the “black hood laws” that keep the drug supplier’s identity secret—was reexamined.

Both inmates in Oklahoma had filed lawsuits, which challenged the constitutionality of the secrecy of Oklahoma’s lethal injection protocols, which prohibits the disclosure of the drug supplier. In January, after Oklahoma inmate Michael Wilson was executed with a three-drug cocktail he was quoted as saying, “I feel my whole body burning.” Compounding pharmacies aren’t regulated by the FDA, leading some to question whether states are practicing criminal—which is to say unconstitutional—negligence by getting lethal injection drugs from them.

An Oklahoma district court denied the inmates stays of execution, but the court records revealed that the state didn’t have the drugs to perform the executions this week, so the executions were delayed anyway—but not for want of effort by the department of corrections.

“This has been nothing short of a Herculean effort, undertaken with the sole objective of carrying out ODOC’s duty under Oklahoma law to conduct Appellants’ executions,” wrote Assistant Attorney General Seth Braham. The Colorado Independent obtained a string of emails (below) between state officials in Texas and Oklahoma that discussed, among things, how to acquire the necessary drugs—joking in "cop humor" about sending pentobarbital to the Lone Star state in exchange for the University of Texas throwing the annual game against Oklahoma.

The Independent's investigation, citing newly published public documents, also revealed that Oklahoma officials have in the past injected death row inmates with leftover lethal injection drugs after the convicts had been pronounced dead. The officials maintain the practice was for "disposal purposes," though the Independent's Katie Fretland questions to what degree re-injecting dead convicts might obscure postmordem toxicology results.

You can only wonder if Oklahoma would still be scrambling to acquire lethal drugs if it hadn't ever double tapped.

Other execution methods are admissible under Oklahoma law, of course, but they can’t be used in this circumstance. The law states that if lethal injection is found unconstitutional, then electrocution can be used; if electrocution is found unconstitutional, then a firing squad can be used. But the execution method can’t just be changed because there aren’t lethal injection drugs convenient.

“It's stunning news to us that the state does not have the means to carry out a legal execution right now, and it gives us deep cause for concern that they are coupling that revelation with an insistence on shrouding the process in secrecy," said federal public defender Madeline Cohen, who had previously represented the two inmates.

"We hope that no execution will go forward until we are able to obtain full information about how Oklahoma intends to conduct those executions, including the source of its execution drugs,” Cohen said.

Oklahoma’s attorney general, Scott Pruitt, for his part, is confident that the delay is only temporary. “Rest assured, accountability for these murders will occur,” Pruitt said. “It’s not a matter of if these punishments will be carried out, but it is only a matter of when."

Legal challenges to lethal injection drugs and the secrecy that surrounds their procurement are also feeling increasingly inevitable, which has lead Tennessee’s attorney general to say that the electric chair can be used and failed legistlative attempts in Virginia and Wyoming to open the options of the electric chair and firing squads respectively.

It’s a strange moment. At the same time, a bill to abolish the death penalty passed through New Hampshire’s House of Representatives and is headed to the state senate. New Hampshire’s governor has said she would sign the bill if it passes. Some in New Hampshire argued against the death penalty on moral grounds, or on capital punishment’s shortcomings, or based on faith, but Arnie Alpert, spokesman for the New Hampshire Coaltion to Abolish the Death Penalty, said that practical considerations have also factored into the death penalty’s dropping popularity in the state.

While practical considerations haven’t eliminated the death penalty in Oklahoma, this isn’t likely to be the last time they delay an execution.