Maybe It’s Time To Stop Letting States Experiment with Secret Death Drugs

Oklahoma death row inmates Clayton Lockett, left, and Charles Warner. Photo via Oklahoma Department of Corrections 

A constitutional crisis over Oklahoma's secret lethal injection methods reached its grisly denouement Tuesday night, with the botched execution of convicted murderer Clayton Lockett. An untested drug cocktail that was supposed to swiftly kill the prisoner instead left him writhing and groaning on the gurney, forcing state officials to halt the execution and postpone a second, scheduled for later than night. Lockett eventually died, apparently of a massive heart attack, a full 43 minutes after the first injection.

For weeks, Tuesday's double execution had been a disaster in the making, thanks to an unusual, and unseemly, standoff between Oklahoma's Republican governor, Mary Fallin, and the state's supreme court. Faced with a nationwide shortage of lethal injection materials, Oklahoma officials were forced to scramble for an alternative cocktail to use in the executions of Lockett and another death row inmate, Charles Warner, settling on an experimental trio of lethal drugs that had never before been tried in a lethal injection. Defense lawyers sued to stay the executions, challenging a state law that shields information about execution drugs and policies. Last week, the Oklahoma Supreme Court agreed to stay the executions until the issue could be litigated. But Fallin, in brazen disregard for judicial independence, decided that the court's decision was invalid and used political pressure to hasten the executions.

The chaotic constitutional wrangling drew national attention, marking the apotheosis of a national debate over whether death row inmates have a right to know basic details about the drugs that will be used to kill them, and whether states should be allowed to keep that information secret, precluding any oversight from medical officials, the courts, or the public. When Lockett's execution began at 6 PM on Tuesday, no one save the officials overseeing the lethal injection knew anything about where the drugs came from, how they had been altered, or whether they would even work.

By now, you know the horrific outcome. At 6:23 PM, a medical technician began administering what was supposed to be a trio of injections to Lockett, starting with the sedative midazolam, a short-acting benzo often used in medical procedures. Ten minutes later, the doctor declared that Lockett was unconscious. The next two drugs, vecuronium bromide and potassium chloride, which paralyze and stop the heart, were administered in sequence.

That's when things started to go awry. According to witnesses, Lockett's body began to twitch, and he was heard mumbling words. Here's an account from KFOR reporter Courtney Francisco, who was in the viewing room to witness the execution:

6:28 PM - Inmate shivering, sheet shaking. Breathing deep.

6:29 PM - Inmate blinking and gritting his teeth. Adjusts his head.

6:30 PM - Prison officials check to see if inmate is unconscious.  Doctor says, "He's not unconscious." Inmate says, "I'm not."  Female prison official says, "Mr. Lockett is not unconscious."

6:32 PM - Inmate's breathing is normal, mouth open, eyes shut. For a second time, prison officials check to see if inmate is unconscious.

6:33 PM - Doctor says, "He is unconscious." Prison official says, "Mr. Lockett is unconscious."

At this point, the two other drugs were injected into Lockett:

6:34 PM - Inmate's mouth twitches. No sign of breathing.

6:35 PM - Mouth movement.

6:36 PM - Inmate's head moves from side to side, then lifts his head off the bed.

6:37 PM - Inmate lifts his head and feet slightly off the bed. Inmate tries to say something, mumbles while moving body.

6:38 pm - More movement by the inmate. At this point the inmate is breathing heavily and appears to be struggling.

6:39 PM - Inmate tries to talk. Says, "Man" and appears to be trying to get up. Doctor checks on inmate. Female prison official says, "We are going to lower the blinds temporarily." Prison phone rings. Director of Prisons Robert Patton answers the phone and leaves the room-taking three state officials with him.

A little after 6:40, Patton, the director of Oklahoma's Department of Corrections, came into the viewing room to announce that a stay had been issued for Lockett's execution. About 25 minutes later, at 7:06 pm, Lockett died of cardiac arrest, according to a statement from Oklahoma DOC spokesperson Jerry Massie. "We believe that a vein was blown and the drugs weren't working the way as they were designed to," Massie wrote. "The director ordered a halt to the execution."

Details about what happened in the chamber, and why things went so terribly wrong, exactly went wrong, are still hazy. On Wednesday, Fallin called for an investigation of the state's lethal injection protocols, to be conducted by Oklahoma's public safety commissioner, and ordered a stay of execution for Warner, the second inmate. (She also emphasized that the state was legally correct in proceeding with Lockett's execution.) On Thursday morning, state officials confirmed that Lockett's body has been sent to Dallas for an independent autopsy. "I believe in the legal process. And I believe that the death penalty is an appropriate punishment for those who commit heinous crimes against their fellow men and women," Fallin said. "However, I also believe the state needs to be certain that its protocols and procedures for executions work."

At this point, the central question in Lockett's death surrounds the secret, untested formula that Oklahoma used in his execution and, more broadly, the hidden provenance of lethal injection drugs in states nationwide. In recent years, the political stigma associated with the death penalty has led drug companies and doctors to distance themselves from the practice, forcing state officers to improvise when it comes to administering lethal injections.

Until 2010, the protocol for lethal injections was standard, relying on the anesthetic sodium thiopental as the key ingredient. But US companies stopped selling the drug, in part because being in the capital-punishment industry is bad for business. The last US supplier, Hospira, stopped making it in early 2011. Later that year, the European Union imposed an export ban on sodium thiopental, as part of an official push for a "universal abolition" of the death penalty.

As inventories dwindle, state officials have been forced to come up with alternative death drugs, either by mixing their own injections or by farming that task out to compounding pharmacies, which make custom drugs and fall outside of the scope of most FDA regulations. And because most medical professionals won't have anything to do with sanctioned killings, the task of coming up with new lethal formulas falls on government bureaucrats.

"The medical community has been particularly eager to oppose using medical means to help figure out how to do these executions efficiently and effectively," said Douglas Berman, an expert on sentencing law at the Ohio State University. "So corrections departments and state officials are trying to come up with these alternatives without any medical expertise. "

The entire process is steeped in secrecy, as states scramble to come up with viable alternative cocktails without revealing the source of the drugs. An Associated Press survey of the 32 states that practice capital punishment found that the vast majority have passed laws shielding information about lethal injection drugs and their suppliers. In some states, corrections officers have gone even further, taking road trips to swap briefcases of sodium thiopental in the middle of the desert, and showing up at out-of-state pharmacies with wads of cash to avoid a paper trail.

The furtiveness is partly to protect drug suppliers, but also to prevent defense lawyers and activists from using the information as anti-death-penalty ammo, said Berman. "There's the feeling that if states are transparent about this, people will take the information to try to block executions," Berman said. "But it also breeds an extraordinary amount of distrust that the government is cutting corners."

Obviously there is no way to test a killer drug cocktail, so death row inmates effectively become the lab rats for states' lethal injection improv. The results have been disturbing. In January, death row inmate Michael Wilson cried out, "I feel like my whole body is burning!" as he was injected with another untested concoction, this one containing pentobarbital, a sodium thiopental substitute that is poorly regulated and, if contaminated, can cause extreme pain. A few days later, in Ohio, condemned inmate Dennis McGuire "gasped and convulsed" for a full 15 minutes after receiving a lethal injection. In Lockett's execution, the trio of drugs used in the lethal injection had only been used once before, in Florida, but Florida used five times the amount of the sedative midazolam than Oklahoma did on Tuesday night. The origins and the efficacy of the drug cocktail were unknown-Oklahoma prison officials would only say that they got the ingredients from licensed pharmacies.

No one-not even the staunchest death penalty supporters-wants it to go this way. "There have been so many incidents of states not getting this right," Berman said. Tuesday night's execution, he added, "was just the most tangible example." But with so much secrecy surrounding lethal injection experiments, it's impossible to know just where states are going wrong. Meanwhile, corrections officers continue to wing it, unwilling to concede that they don't know what they're doing.

"Everybody agrees, if you're going to have the death penalty, you need to be careful," Berman said. "But the less transparency there is, the more likely it is that this is going to get done wrong."