Lawyers for four Oklahoma death row inmates are petitioning the Supreme Court to halt an upcoming execution on the grounds that one of the drugs to be used in the lethal injection led to three previous botched executions, thus constituting cruel and unusual punishment.
Barring an intervention by the Supreme Court, the state is set to execute a death row inmate Charles Warner by lethal injection on Thursday using a two-drug cocktail that contains midazolam, the same drug that left another Oklahoma inmate, Clayton Lockett, writhing on a gurney for 43 minutes before dying of a massive heart attack last year.
The Supreme Court petition represents Warner's last chance for a stay of execution after the 10th Circuit Court of Appeals rejected his appeal last week. Warner, who is sentenced to death for the 1997 rape and murder of an 11-month-old girl, was originally scheduled to be executed in April 2014 on the same day as Lockett, but Oklahoma Governor Mary Fallin halted all executions after that execution went south.
Lockett's execution was the first time Oklahoma had used midazolam in its lethal injection cocktail, and the gruesome result prompted Fallin to order a review of the state's policies. According to transcripts of Oklahoma's investigation into Lockett's execution, the former general counsel for the corrections department said his research on midazolam included the internet and "WikiLeaks or whatever it is." But although Oklahoma has since announced new policies and increased training for lethal injections, the new protocols allow the state to continue using the sedative midazolam, which is not approved for use as a general anesthetic, at higher dosages.
Attorneys for Warner and three other Oklahoma death row inmates now argue the drug isn't reliable and violates inmates' Eighth Amendment protections against cruel and unusual punishment. They point to two other cases, in Ohio and Arizona, where there were serious complications from lethal injections that used midazolam. In Arizona, the execution of death row inmate Joseph Wood's execution stretched out for nearly two hours and required 15 doses of each lethal injection drug, including midazolam.
"We know that midazolam does not satisfy the constitutional requirement of preventing cruel and unusual suffering and that it does not reliably anesthetize prisoners during executions," one of Warner's lawyers, Dale Baich, said in a statement to VICE. "We know this because of Clayton Lockett's execution, where he struggled for over 30 minutes; and because of Dennis McGuire's execution [in Ohio], where he made snorting noises for more than twenty minutes; and because of Joseph Wood's execution, where he gulped and gasped for almost two hours. We will ask the US Supreme Court to prevent the scheduled executions from going forward due to the substantial risk of harm."
Last week, Ohio announced it would no longer use midazolam in lethal injections. But Oklahoma state prosecutors and officials are charging forward with Warner's execution. "The staff at the Oklahoma Department of Corrections has trained very, very hard, and I'm very confident in their abilities," the state corrections director Robert Patton told the Associated Press.
"The citizens should not see their criminal justice system derailed and subverted by criminal defendants who have completely exhausted the entire range of appeals and processes required by the US and Oklahoma Constitutions due to baseless speculation of theoretical harms," state attorneys wrote in a brief filed this week.
It's the latest controversy in the long-running saga over the hidden provenance of lethal injection drugs used in states nationwide. In recent years, the political stigma surrounding the death penalty has led drug companies to distance themselves from the practice, resulting in a shortage of drugs used in lethal cocktails. The crisis began in 2011, when the European Union banned the export of sodium thiopental, the main drug used in lethal injections in the US. As supplies of sodium thiopental dried up, states that still administered the death penalty began using less reliable combinations of sedatives and paralytics from compounding pharmacies.
In turn, those states began working hard to hide the details of where the drugs came from, how they were used, and their efficacy. Although First Amendment groups have pushed states to lift the veil of secrecy surrounding lethal injection protocols, so far, states that employ the death penalty have been reluctant to go public with details about how inmates are executed. Late last year, the Ohio legislature floated a bill to hide the identity of compounding pharmacies that produce lethal injection drugs.
In December, a federal judge rejected a lawsuit by Oklahoma media outlets and the Associated Press seeking greater access to executions. And the state's new protocols cut down the number of media witnesses allowed at executions from twelve to five.