State officials considered improvising once again during an execution when they realized they had a drug not legally approved for use in Oklahoma lethal injections, sources told The Frontier.
Officials “briefly considered” using potassium acetate for the scheduled execution of Richard Glossip Wednesday, a spokesman for Gov. Mary Fallin said. The drug is not part of Oklahoma’s legally approved protocol.
Now three scheduled executions will be stayed indefinitely as state officials say they’re investigating what went wrong this time, so Oklahoma “can properly and lawfully administer the sentence of death.”
Two hours before Glossip’s scheduled execution, Department of Corrections officials said, prison staff opened a sealed box of drugs that had arrived hours earlier to find that it contained potassium acetate instead of potassium chloride.
Potassium chloride is the fatal third step of Oklahoma’s lethal injection combination, used to stop the heart of the condemned. Potassium acetate could be used in a similar fashion, experts told The Frontier, but has never been used in a U.S. execution.
When Oklahoma improvised in the 2014 execution of Clayton Lockett, it ended up defending its execution procedures at the U.S. Supreme Court. A federal lawsuit filed in the wake of Lockett’s botched lethal injection revealed that a doctor and paramedic improvised a cut-down procedure to gain access to his veins, but lacked the correct size needles or an ultrasound machine to guide the procedure.
What resulted was described by witnesses inside the execution chamber as “a bloody mess” like a “horror movie,” with Lockett straining and writhing on the gurney as numerous IV attempts failed to deliver the drugs that were supposed to sedate him. He died after 43 minutes, when the potassium chloride eventually stopped his heart.
In what was supposed to be his final hour, Glossip’s execution was once again stayed Wednesday. It was the second time the state had fed him his last meal and the third time he had been brought within hours of execution, in a death sentence that has been mired in controversy.
After a request from the Attorney General’s office, the Oklahoma Court of Criminal Appeals issued indefinite stays for Glossip and two other inmates scheduled to die in October.
State officials repeatedly used the phrase “legal ambiguity” Thursday in reference to questions about whether the state considered substituting potassium acetate at the last minute for Glossip’s execution.
But Oklahoma’s law has no ambiguity: Whatever chemicals the state plans to use, it must notify the offender “in writing 10 calendar days prior to the scheduled execution date.”
In an August letter to one of the federal public defenders representing Glossip in prior legal challenges regarding Oklahoma’s execution drugs, Assistant Attorney General John Hadden said he had “received confirmation from the Oklahoma Department of Corrections that sufficient drugs to carry out the executions of Richard Glossip, Benjamin Cole and John Grant have been obtained. The drugs are midazolam, rocuronium bromide and potassium chloride…”
But Robert Patton, director of the Department of Corrections, issued a statement Thursday, saying the drugs didn’t arrive at the prison until Wednesday, in a sealed box that no one opened until two hours before Glossip’s scheduled execution. That was when the drug mixup was discovered, reportedly by the execution doctor.
It is unclear why DOC officials didn’t open the box until that point, as the protocol requires the H Unit Section Chief to “ensure the chemicals are ordered, arrive as scheduled and are properly stored” once an execution date is set.
“Contact was immediately made to the provider, whose professional opinion was that potassium acetate is medically interchangeable with potassium chloride at the same quantity. However, by the provider supplying us with potassium acetate, a legal ambiguity was created that needed to be cleared up before moving forward,” Patton’s statement read.
In response to reports that DOC considered moving forward with the execution using the substitute drug, Patton told a reporter for the Oklahoman on Thursday: “That’s just crap.”
But Alex Weintz, a spokesman for Gov. Mary Fallin, confirmed to The Frontier that the idea was at least discussed or “briefly considered” when DOC officials notified the Governor and Attorney General that the box contained a different drug.
The two drugs function similarly and can both stop the heart, experts say, but potassium acetate is not listed on the state’s “Constitutionally-approved protocol” for executions.
“After the Department of Corrections realized they had potassium acetate, they did try to acquire potassium chloride and they could not,” Weintz said. “The stay was solely about the legal ambiguity making sure that it was on sound legal footing.”
The FDA maintains a list of drugs that are in short supply; and potassium chloride first appeared on the list in 2012. Drugs cycle on and off the list, but potassium chloride was listed in short supply as of last week.
Weintz said Fallin decided to stay the execution “after consulting with the attorney general and Director (Robert) Patton and the legal staffs of all three offices.”
When asked to clarify how far the discussion on substituting potassium acetate went before Glossip’s execution was stayed at 3:45 p.m., DOC spokeswoman Terri Watkins said: “My understanding is they asked ‘Could we do this? Could we do that?’ And they realized that there’s a legal ambiguity here, so let’s stop the execution.”
Aaron Cooper, spokesman for Attorney General Scott Pruitt, declined to comment on whether officials ever discussed using the potassium acetate.
Pruitt issued a blistering statement Thursday as he filed a motion with the Oklahoma Court of Criminal Appeals to indefinitely stay the executions for Glossip, Cole and Grant as he launched an inquiry to find out what happened. His request was separate from the 37-day stay issued for Glossip by the governor.
“Not until shortly before the scheduled execution did the Department of Corrections notify my office that it did not obtain the necessary drugs to carry out the execution in accordance with the protocol. Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions,” Pruitt said.
“I am mindful of the families who have suffered an agonizing time through this process, and my heart breaks for them. At least three families have waited a combined 48 years for closure and finality after losing a loved one. Yet, they deserve to know, and all Oklahomans need to know with certainty, that the system is working as intended.”
Glossip was sentenced to die for the 1997 murder of Barry Van Treese. His execution has been the subject of controversy for months, as supporters decried what they say is an unfair sentence based on questionable evidence. Justin Sneed, the man who killed Van Treese with a baseball bat, received a life-without-parole sentence in exchange for testifying that Glossip paid him to murder their boss at the Oklahoma City motel where they worked.
Why DOC waited until the day of the execution to secure potassium chloride is unclear.
Weintz said the agency “is not authorized by state or federal law to hold execution chemicals on the premises.”
Cindy Hamilton, chief pharmacist compliance officer for the Oklahoma Board of Pharmacy, said the prison could hold potassium chloride on site as long as it had a licensed professional, such as a doctor.
Sources told The Frontier that potassium chloride used in other executions was previously stored in advance at the prison.
When asked for clarification, Weintz said the prison “can’t hold midazolam and they come together in a sealed package.”
Midazolam has been the focus of controversy after problematic executions in Ohio, Arizona and Oklahoma. Shortages of another drug, pentobarbital, forced officials to resort to the sedative as an alternative drug.
David Kroll, a pharmacologist and medical writer, said the drug switch may be a reflection of a growing reluctance by medical professionals to assist in executions.
“Maybe this reflects the fact that people in the medical profession don’t want to touch this with a 10-foot pole. Even the pharmacy organization now has come down and said it’s unethical to participate in an lethal injection,” he said.
The state passed a secrecy law in 2011 that prevents release of information about doctors, pharmacists and others who take part in executions. A state investigation following Lockett’s execution concluded that errors inserting the IV were mostly to blame.
The doctor, who had only participated in one execution before Lockett’s, was filling in for another physician who normally oversees executions.
Dale Baich, an attorney for Glossip, said state officials told defense attorneys in August they had potassium chloride on hand for the execution.
“They were supposed to check on Monday to make sure they had everything they needed but then the drugs are delivered on Wednesday,” Baich said. “Then they lied in the pleading that they filed with the federal court because they said they had it.”
Robert Dunham, executive director of the Death Penalty Information Center, said he is not aware of any state that has used potassium acetate in an execution.
Dunham called the lethal drug mix-up in Oklahoma “extraordinary and unprecedented.”
“The one thing that should be completely within the state’s control physically are the chemicals that it is using to carry out an execution,” Dunham said.
“The Department of Corrections told the Oklahoma Attorney General’s office in August that it was following the protocol … It’s clear that the Attorney General’s office was taken by surprise as well as everybody else.”
Dunham said critics of the death penalty often say “that you simply can’t trust states to get it right.”
“There is no clearer example of that then what just happened in Oklahoma.”