Oklahoma’s new execution protocol is “incomplete,” attorneys representing Oklahoma’s death row prisoners said on Thursday, saying that information provided by the state so far “does not comply” with a 2015 joint stipulation dismissing the inmates’ former lawsuit.
The attorneys filed a motion on Thursday seeking to reopen the lethal injection lawsuit that had been closed in 2015 after a stay was placed on the death penalty in Oklahoma. That lawsuit was filed by about two dozen death row inmates who said the state was “experimenting” with their lives following a series of execution-related mistakes.
“The filing points out that the Oklahoma Department of Corrections has not provided specific protocols and training for staff carrying out executions, an omission that prevents prisoners and the courts from assessing the constitutionality of the new protocol,” the attorneys said in a media release Thursday.
The death penalty in Oklahoma was placed on hold following a series of high-profile mishaps that resulted in one inmate writing and trying to climb off the chair during his lethal injection, as well as the wrong drug being used in one execution and ordered, but not used, in another.
Two years ago, the state said it had mostly given up on locating the drugs needed to carry out a lethal injection and was instead developing its new protocol around inert gas inhalation, the process of forcing someone to breathe in an inert gas (in this case nitrogen) rather than oxygen, supposedly resulting in a painless death.
And earlier this month Attorney General Mike Hunter announced the state had found a “reliable” source of lethal injection drugs and released a new death penalty protocol centered on what he said were safeguards against mistakes that had plagued Oklahoma in the past.
But that’s not enough, attorneys for the death row inmates said, saying there’s a “lack of planning” on the state’s part that is “a recipe for another Oklahoma execution disaster.”
“Transparency and careful judicial review are the only ways to ensure humane, constitutional, executions,” Dale Baich, one of the attorneys, said in a media release. “But the courts cannot review procedures that don’t exist, and Oklahoma’s new protocol has a placeholder promising future plans where the plans should be. Rather than articulate substantive training requirements and other necessary procedures, the state’s Notice essentially says, ‘We’ll get around to that. Trust us.’”
When Hunter released the protocol earlier this month, he didn’t go into much detail about the specific changes. However, Crow told reporters that only “minor changes” had been made.
“The things we are focused on is making sure the individuals that are involved in carrying it out have actually been trained and there’s a process of checks and balances to make sure each of the requirements in the protocol is being done exactly in accordance with the way that it’s specified,” Crow said.
In 2015, Oklahoma attempted to execute Richard Glossip, but a last-minute court-ordered stay kept him from the death chamber. It was later learned the state had the wrong drugs and, had the execution gone forward, would have used potassium acetate, an unapproved drug, rather than potassium chloride.
The new protocol calls for the drugs to be color-coded and verified visually and named out loud in order to prevent any mishaps. Baich said that provision is “meaningless.”
“The state has to be able to demonstrate that it can and will follow the protocol, and we know from past experiences that the state has not followed the written word,” he said. “So just adding more words to the protocol is not the solution.
“Until there are more details about the training curriculum and actual trainings done by the team conducting the execution, we cannot make a full assessment that the training outlined in the protocol will address past failures.”
When Oklahoma paused the death penalty in 2015, part of the agreement was that upon the release of an updated protocol, a 150-day stay would go into effect to allow attorneys to prepare court challenges prior to an execution date being set. In theory, that 150-day stay began Feb. 13 upon release of the new lethal injection protocol. But Baich said the death row attorneys believe the stay is still in place since they think the protocol is incomplete.
“It’s our position that the 150-day clock has not begun to run,” he said.
There are 47 inmates, 46 men and one woman, on Oklahoma’s death row. Of those, 27 inmates have exhausted their appeals and are eligible to have an execution date scheduled when the 150-day expires.