Oklahoma to use secretly-sourced, experimental lethal injections in spite of court ruling
Would unprecedented drug cocktail constitute cruel and unusual punishment?
Oklahoma revealed plans Tuesday to use an experimental mix of lethal injections from a secret source to execute two men later this month.
The state plans to use midazolam, pancuronium bromide and potassium chloride in the April 22 and April 29 executions of Clayton Lockett and Charles Warner. Despite a ruling last week that secrecy around Oklahoma’s purchases of lethal injections is unconstitutional, the state’s attorney general’s office still won’t identify the source of the drugs it plans to use in the upcoming executions, said Colorado Assistant Federal Public Defender Madeline Cohen, who represents Warner.
Warner was convicted of raping and killing an 11-month-old child in 1997. Lockett was convicted of the 1999 murder of a 19-year-old woman, plus other crimes, including rape.
Like many states, Oklahoma has been carrying out its executions – at a rate of about four to five times a year — using a three-drug “cocktail” consisting of pentobarbital or sodium thiopental, followed by vecuronium bromide and potassium chloride.
But some of those drugs have been yanked off the market by drug companies unwilling to have them used for capital punishment. European countries, which abolished the death penalty, have refused to allow exports of drugs for executions, and anti-death penalty groups in the U.S. have campaigned to expose pharmaceutical companies involved in executions. These factors have left states scrambling to find willing suppliers.
As Oklahoma searched for lethal injection doses, an investigation by Katie Fretland for The Colorado Independent found that state has killed at least nine inmates with an overdose of the first drug in the “cocktail”, pentobarbital – which is intended to induce unconsciousness. Prison officials then injected the remaining two drugs into the dead bodies for “disposal purposes,” according to documents.
As doses for the three-drug cocktail become increasingly scarce, Oklahoma changed its protocol late last month to allow five different methods of lethal injection chosen by the warden of the Oklahoma State Penitentiary in McAlester, Okla. Warden Anita Trammell can choose from four three-drug methods or a large dose of one drug – pentobarbital, the anesthetic.
No other state is known to have used the menu of execution options that Oklahoma officials announced Tuesday.
“The new protocol raises grave concerns about its safety and efficacy,” Cohen said.
“This creates a serious and substantial risk that the condemned prisoner will not be adequately anaesthetized before he is injected with the paralytic, pancuronium bromide, or with potassium chloride to stop his heart, both of which indisputably will cause excruciating pain and suffering to someone who is sensate upon their administration,” Cohen added. “This protocol also carries a substantial risk that the condemned prisoner will suffer a lingering and torturous death from suffocation, due to the effects of both midazolam and pancuronium bromide.”
Concerned about violations of 8th Amendment prohibition against cruel and unusual punishment, lawyers plan to ask for a stay of execution for Lockett and Warner as court cases continue. In March, the Oklahoma Court of Criminal Appeals granted a stay for both men, moving their executions from March 20 and 27 to April 22 and 29 because the state did not have the drugs to carry out the executions. Lawyers want to ask for another stay.
Last week, an Oklahoma judge ruled that the state law concealing the source of lethal injection drugs is unconstitutional. Exhibits in that proceeding included documents uncovered in The Colorado Independent’s investigation.
The state is appealing the judge’s ruling. It continues refusing to discloses details about where the drugs are from, citing a rule that entitles the state to a stay of the judge’s ruling.
Oklahoma Assistant Attorney General John Hadden wrote in a letter to attorneys that the Oklahoma Department of Corrections has secured the drugs for Lockett and Warner’s lethal injections and that a pharmacist will hold them until their executions. He said two of the drugs — midazolam and pancuronium bromide — were made by a compounding pharmacy. So-called compounding pharmacies are manufacturing and selling lethal injection drugs now that big drug companies have pulled their products from the market. Such pharmacies – which made the drugs in small batches by special order — have come under fire for lax oversight after one was linked to a deadly meningitis outbreak in 2012.
Hadden told lawyers for Warner and Lockett that the state will have the compounded drugs inspected before the executions.
“A qualitative analysis of these drugs has been ordered and will be completed approximately fourteen (14) days from today’s date,” he wrote. “(The corrections department) will provide a copy of these test results to you as soon as they become available.”
The Colorado Department of Corrections faced challenges last year procuring lethal injection drugs for the execution of Nathan Dunlap, which was planned for August. Even after Gov. John Hickenlooper indefinitely delayed Dunlap’s execution, the state wouldn’t disclose information about which drugs it planned to use and where it was buying them. A lawsuit by the American Civil Liberties Union of Colorado resulted in more transparency around Colorado’s execution protocols.
[Photo from a protest held by the World Coalition Against the Death Penalty in Paris. As European drug companies refuse to sell drugs for use in lethal injection, states like Oklahoma resort to unconventional methods.]
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