Oklahoma will use the same drugs as in previous lethal injection executions when it resumes the death penalty, possibly — though unlikely — as soon as later this year, state officials said on Wednesday.
Gov. Kevin Stitt, along with Attorney General Mike Hunter and Department of Corrections Director Scott Crow, announced an updated death penalty protocol that puts the state one step closer to resuming executions.
More than five years have passed since the last execution, where convicted child killer Charles Warner, 47, was executed with the wrong drug. State officials have touted in recent years a switch to a new form of execution, nitrogen hypoxia, in which an inmate would have their oxygen replaced with an inert gas, rendering them unconscious and quickly dead.
The state hasn’t abandoned the nitrogen hypoxia process, Hunter said. But state law required DOC to use nitrogen hypoxia only if the requisite drugs were not available for lethal injection.
And they became available.
However Hunter offered no hints at where the drugs — midazolam, vecuronium bromide and potassium chloride — had been found. State law exempts officials from having to disclose who is providing the lethal mixture, as officials have argued that identifying the source of the drugs could put those who sell the state the drugs at risk of public reprisal. Before he resigned as DOC director, Joe Allbaugh complained often of the difficulty of locating the drugs necessary for lethal injections, and once told reporters he had been on the phone with “seedy individuals” in the “back streets of the Indian subcontinent” in attempts to find the drugs.
Alex Gerszewski, spokesman for the AG’s office, told The Frontier he could not say whether the drugs had been found in the United States or if they were coming from overseas.
Dale Baich, one of the attorneys representing Oklahoma’s death row inmates in a federal lawsuit, emailed a statement Wednesday afternoon saying that attorneys planned to continue “the ongoing litigation challenging the constitutionality of Oklahoma’s protocol.”
Baich said in his statement that Oklahoma’s “return to its troubled three-drug midazolam protocol should have been accompanied by a commitment to complete transparency and a demonstration of the efforts the state has taken to fix the significant problems that have plagued recent executions efforts. But it was not.”
“Instead,” Baich said in his statement, “Oklahoma officials announced the state will revert to its problematic midazolam protocol and provided no assurances that the state is prepared to carry out executions in a manner that comports with the Constitution. Oklahoma’s history of mistakes and malfeasance reveals a culture of carelessness around executions should give everyone pause.”
Crow told reporters he could reassure Oklahomans who were worried that the state would again botch an execution — as it did when Clayton Lockett was put to death in 2014 — because the new protocol called for “a system of checks and balances” at every step to make sure the right drugs were being used and that “every piece of the protocol is followed exactly.”
“I feel very confident in establishing a team of individuals that will be involved in executing those protocols to make sure there are no mistakes,” Crow said.
With the announcement of the new protocol, a court-ordered 150-day stay on the death penalty began on Wednesday. Hunter said that when the stay ends in late July, the state could begin scheduling executions for the 26 inmates who’ve exhausted their appeals.
However challenges by defense attorneys will likely delay that process, he said, though he remained confident the protocol would pass court review.
“We can finally tell the victims that their wait for justice is almost over,” Hunter said. “We are assured that any challenges to the updated three drug protocol will clear the judicial process. I say this with confidence because lethal injection has been ruled as humane and has satisfied both the constitution and the court system numerous times.”
Hunter didn’t go into much detail about specific changes to the protocol, 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.
There are 47 inmates on death row, and Stitt has said multiple times he believes the death penalty is “appropriate for the most heinous of crimes.”
Hunter told reporters Wednesday that although the state was moving forward with lethal injection, it would continue to develop a nitrogen hypoxia protocol as a backup should the drugs become difficult to obtain again.
“Proponents of capital punishment are waging a guerilla war against the death penalty with the goal of making it impossible for states to obtain execution drugs and we want to be ready if that day comes,” Hunter said.
The state first announced in March 2018 that it would use nitrogen hypoxia as its primary execution method, but ran into the same problems with that process as it had with lethal injection — no one wanted to create a device necessary to kill inmates.
Last year Hunter told attendees at an Oklahoma District Attorneys Council meeting that Oklahoma had begun looking into the process of building its own device necessary to carry out nitrogen hypoxia executions, but to date has yet to do so.
The Oklahoma chapter of the ACLU issued a statement on Wednesday afternoon criticizing the state’s planned resumption of executions.
“Oklahoma’s experiment with the death penalty is a miserable and grisly failure,” ACLU director Ryan Kiesel said in the statement. “Death sentences are handed out arbitrarily and magnify the biases that exist within our criminal legal system. Whether someone is executed depends more on which county they happen to be in, their race or gender, the race or gender of the victim and whether they had the financial means to hire adequate legal counsel. Statistics have shown that more than 10 percent of the people with a death sentence have been wrongfully convicted.”
Kiesel said there were a number of things that should have Oklahomans wary.
“Combine the random nature of who gets the death penalty, with the state’s repeated failures in carrying out executions, the government’s refusal to share information, and the possibility of Oklahoma executing an innocent person, and it just seems like common sense that we should not trust the government with this awesome and irrevocable power,” he said in the statement.
Don Knight, who represents death row inmate Richard Glossip, released the following statement.
Checks and balances
In 2015, Oklahoma attempted to execute 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.
In the new protocol, it calls for the drugs to be transferred from the U Unit Section Chief to the Special Operations team leader on the day of the execution. The SOT leader will at that point “verify the identity, concentration and quantity of each chemical,” the protocol states.
The protocol states the “IV Team Leader” will then assist an SOT member with “preparing and labeling” the syringes “in a distinctive manner.” Each chemical in each syringe is to be identified with an assigned number, a chemical name, the chemical amount and a designated color meant to distinguish each drug.
Ten days prior to the execution, the DOC director will notify the inmate set to be executed about which drug combination will be used in the lethal injection.
The protocol calls for four options:
A lethal amount of pentobarbital (5 grams.)
A lethal amount of sodium pentothal (5 grams.)
The three-drug combination of midazolam, vecuronium bromide, and potassium chloride.
A “reserved” combination that allows for the protocol to be updated with a different combination of drugs should they become available to purchase and be passed legislatively as an execution option.
Gerszewski said state law allows for pentobarbital or sodium pentothal to be used as lethal injection options, but the state has not been able to procure those drugs for quite some time.
If Chart A (pentobarbital) or Chart B (sodium pentothal) is selected by the DOC director, the process goes like this: The SOT member will confirm vocally the chemical name on the syringe and give the inmate the full dose followed by a “heparin/saline” flush. Heparin is a blood thinner.
After five minutes passes, the IV team leader, “dressed in a manner to preserve their anonymity,” enters the room to physically confirm the inmate is unconscious.
Five minutes later, if the inmate remains conscious, the DOC director can decide to start the procedure over at a later time or stop altogether. The director can also call for additional doses of the chemicals and heparin/saline flush to be administered.
If the execution goes ahead, the IV team then confirms the inmate is unconscious. The IV team leader then confirms if the inmate is deceased, and the death is announced by either the DOC director or a designee.
If Chart D is selected (the three-drug cocktail,) the drugs are visually and vocally confirmed by an SOT member, then administered to the inmate one at a time. Five minutes after the first chemical is administered, the anonymous IV team leader checks to see if the inmate is unconscious, then the next two drugs are confirmed visually and vocally and administered.
Five minutes later the director can decide, based on the condition of the inmate, to stop, re-start, administer an additional dose of the drugs, or carry on with the execution. The inmate is again checked for consciousness and when the inmate’s heart stops “as shown by the electrocardiograph,” the death is announced by the director or designee.