Image: Ken Piorkowski/Flickr
This evening, for the first time in more than 80 years, the state of Oklahoma will execute two prisoners on the same day, barring some sort of extraordinary legal intervention. Legal challenges to the secrecy surrounding the state's recently revised lethal injection procedures pushed back the executions by a month, but despite the objections of the defendants' lawyers, who say that unanswered questions remain, the state is set to be the first to execute two inmates just hours apart since Texas did so 14 years ago.
Last week the state supreme court voted 5-4 to issue a stay of execution for Clayton Lockett and Charles Warner, so that the court could “fully adjudicate the serious constitutional issues about the extreme secrecy surrounding lethal injection procedures in our state,” according to attorneys Susanna Gattoni and Seth Day. What happened next, according to Warner's attorney, Madeline Cohen, was politics. Governor Mary Fallin issued a statement attacking the court's decision. A representative in the Oklahoma state legislature filed articles to impeach the five justices who voted for the stay, and within 48 hours the stay was lifted.
At issue was the constitutionality of how Oklahoma gets its lethal injection drugs and what it uses. In recent years, pharmaceutical companies have stopped selling the drugs used in capital punishment to state departments of corrections, leaving states struggling to find alternative drugs and suppliers.
In Oklahoma, as well as neighboring Missouri and Texas, the new sources are shrouded behind “black hood laws” designed to protect those involved in the execution. But some argue, including Oklahoma City Judge Patricia Parrish in a ruling in March, that the secrecy laws are unconstitutional, because they deny defendants their constitutionally guaranteed access to the courts, and verification that the state is not subjecting inmates to cruel or unusual punishment.
I spoke with Cohen this afternoon and she explained that “we'll never really know what happened for sure in those 48 hours” between when the stay was issued and when it was lifted, but it wasn't the reexamination of the procedures that she was hoping for, nor more transparency. The political fighting that spread across all three branches of the Oklahoma state government only discredit the process further.
“In addition to the secrecy surrounding these executions, intense and inappropriate political pressure on Oklahoma’s judiciary from the Oklahoma Governor and Legislature has put a permanent stain on this entire process,” said Cohen in a statement. “In a more appropriate political climate, Oklahoma’s Supreme Court could have taken a thorough look at this secrecy and ensured that all laws were carefully followed. Instead, we will never know.”
The New York Times quoted the defense lawyer Stephen Jones as saying that the state supreme court’s decision “creates the impression that they caved in to popular opinion, to pressure from the legislature and the executive branch and from the court of criminal appeals.”
If the executions take place as planned, it will be the first time that the state uses a new, three-drug protocol: midazolam as the pain relief agent, vecuronium bromide as the paralytic, and potassium chloride to stop the heart. The only known use of this combination has been in Florida, whose protocol called for five times more midazolam.
While the drugs themselves have been disclosed, the source, purity, testing and efficacy of the drugs hasn't been, Cohen said. “We have so many unanswered questions left,” she told me over the phone. “These raise very real concerns; we've seen badly botched executions.”
One of the most famous botched executions took place in Oklahoma on January 9. Inmate Michael Lee Wilson's last words after being injected with compounded pentobarbital were, “I feel my whole body burning.” In Ohio, Dennis McGuire took over 20 minutes to die after being injected with a combination of midzolam (a sedative) and hydromorphone (morphine derivative), which is four times longer than is typical.
And while Ohio officials—and many internet commenters—don't believe that inmates should be assured a “pain-free” execution, this is still a constitutional issue.
“The argument would be that it’s cruel to subject somebody to something where the results are uncertain—whether it’s a drug that hasn’t been used before, or its come from a company that hasn’t been inspected or approved,” Richard C. Dieter, of the Death Penalty Information Center, told me in an interview in October. “It could be put down as carelessness by the state, or providing poor care in prisons or mental hospitals. It’s a cruel way to treat people. Yes, they can be executed but they can’t be executed any way you want.”
Cohen said that the secrecy laws have prevented them from investigating any further, and the defense team has exhausted their legal options. “We have no other claims to make at this point. The state court has spoken, and because it's the implementation of state law, we can't pursue that to the supreme court,” she said.
The state's secrecy laws prevent the sentence from being disputed from any other legal angle, and the challenge to the state's secrecy law has been set aside without resulting in any more disclosure. “Without the information we can't make a challenge to anything other than the secrecy,” Cohen said. “We will be waiting out the next few hours.”