Secrecy Around Lethal Injection Drugs Has Halted Two Executions in Oklahoma

Questions about who makes lethal injection drugs and the constitutionality of keeping said sources shrouded in secrecy got more legal pushback this week in Oklahoma. In a 5-4 decision, the Oklahoma Supreme Court put a hold on the execution of two inmates: Clayton Lockett who was scheduled to be executed today, and Charles Warner who was scheduled for execution April 29.

The two inmates sued the state, demanding that it disclose the source of the pentobarbital and vecuronium used in the three-drug cocktail that would be used to kill them. Their executions were originally scheduled for March 20 and March 27, but were delayed when the state could not find the necessary execution drugs. The ruling halts the executions until the state Supreme Court can hold a hearing on the inmates' lawsuit.

During the drug-shortage caused delay, an Oklahoma county district judge called the laws that keep the source of the lethal injection drugs shrouded in secrecy unconstitutional, a ruling that the attorney general's office appealed to the state Supreme Court.

"We are relieved, and extremely grateful to the Oklahoma supreme court for its reasonable decision to stay the scheduled executions,” attorneys Susanna Gattoni and Seth Day said in a statement following the decision, according to The Guardian. “With today's stay, the Oklahoma supreme court will be able to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding lethal injection procedures in our state.”

Oklahoma Attorney General Scott Pruitt's office did not say whether it would appeal this ruling, but the New York Times reported that he called it a ploy to delay the execution. “The Oklahoma Supreme Court has acted in an extraordinary and unprecedented manner, resulting in a constitutional crisis for our state,” Pruitt said in a statement Monday evening .

In an emailed statement, Pruitt told Al Jazeera that "the AG's office is trying to determine the appropriate response to address these issues.”

The whole process has been rather convoluted, as is to be expected with such a contentious legal issue. After the secrecy laws were deemed unconstitutional in March, the judge sent the request for a stay of execution to the Oklahoma Criminal Court of Appeals, which claimed to not have jurisdiction over men who weren't appealing their convictions or sentences. Lawyers for the inmates then appealed to the state Supreme Court, which essentially told the Court of Appeals that it did, in fact, had the authority to issue a stay.

The Court of Appeals again claimed no jurisdiction on Friday, at which point the lawyers requested the Supreme Court for a stay, which granted it the opportunity to address questions of the constitutionality of conducting executions without revealing the source of the drugs.

The request for a stay, filed on Monday, said that the inmates "have received no certifications, testing data, medical opinions or other evidence to support the state's insistence that these drugs are safe, or to prove that they were acquired legally."

The Supreme Court's decision makes the court sound like it only issued the stay reluctantly, as the alternative would be executing the men without granting them their constitutional right to the courts.

"The 'rule of necessity' now demands that we step forward," stated the Supreme Court's majority opinion, as reported by The New York Times. "We can deny jurisdiction, or we can leave the appellants with no access to the courts for resolution of their 'grave' constitutional claims.

Questions about the legality of secrecy laws have come up in neighboring Texas and Missouri. In Texas, the US Supreme Court denied the inmate Tommy Lynn Sells's request for a stay, and he was executed as scheduled. Missouri, which for a time was getting its lethal injection drugs in a legally dubious manner from a compounding pharmacy in Oklahoma, is preparing to execute the inmate William Rousan on Wednesday.

It's a fine distinction—in Texas the drugs themselves were disputed, and whether or not the state was practicing due diligence by acquiring them from a lightly regulated compounding pharmacy, and the US supreme court denied the stay. In Oklahoma, the methods governing the acquisition of lethal injection drugs, and the extent to which prisoners have a right to access records concerning those methods, came into question, and a stay was granted.

An appeal was filed in federal court by Rousan's lawyers, which questions the secretive process that Missouri uses to acquire drugs, but the Daily Journal, in Park Hills, Mo., reports that officials are still planning on executing Rousan shortly after midnight.