As Oklahoma Goes, So Goes America’s Death Penalty?

Posted in: Criminal Law

On February 28, a federal trial challenging Oklahoma’s lethal injection protocol began in Oklahoma City. To anyone who follows America’s death penalty, this case raises familiar and important questions about this country’s most popular method of execution.

It is the latest in a series of efforts to expose lethal injection’s flaws. Those efforts have continued unabated even after the Supreme Court affirmed the constitutionality of lethal injection in its 2008 Baze v. Rees decision and approved the use of midazolam in 2015 in Glossip v. Gross.

Anti-death penalty activists and death penalty supporters across the United States are watching the Oklahoma litigation closely. It illustrates the bizarre complexity of the Supreme Court’s lethal injection jurisprudence and offers a window into the troubling recent history of Oklahoma’s death penalty.

The lawsuit began in 2014. It was brought by 30 death row inmates who had exhausted their appeals and claimed that the state’s death penalty protocol violates the Eighth Amendment’s prohibition on cruel and unusual punishment. It is being heard by U.S. District Judge Stephen Friot, who was appointed to the bench in 2001 by President George W. Bush.

The plaintiffs contend that midazolam, the first drug in the state’s current three-drug protocol, is inadequate as a sedative and creates a significant risk that someone being executed will experience serious pain when the other two drugs are administered.

They also contend that there are readily available execution methods, in particular the firing squad, that will significantly reduce that risk.

The state argues that there is nothing wrong with midazolam. It notes that the drug has been used without incident in numerous executions and says that it is a safe way to ensure that the condemned do not suffer.

The Oklahoma litigation is significant because of the state’s leading role in the American capital punishment system. Indeed, Oklahoma may have displaced Texas as the death penalty capital of the United States.

Since its admission to the Union in 1907, Oklahoma has executed 196 men and three women. Eighty-two of them were executed by electrocution, one by hanging (a federal prisoner), and 116 by lethal injection.

And since 1976, Oklahoma has executed more people than any state other than Texas, and it has the highest number of executions per capita in the country.

It also has recorded a number of notable firsts in the recent history of America’s death penalty.

In 1977, it became the first state to adopt lethal injection as its execution method.

It was the first state to authorize the three-drug cocktail (sodium thiopental, a sedative; vecuronium bromide, which stops respiration and potassium chloride, which stops the heart) that quickly became the national standard.

However, Oklahoma did not carry out its first execution by lethal injection until 1990, when it put Charles Troy Coleman to death for murders he committed in 1979. His execution was almost a decade after Texas carried out the first lethal injection.

In 2010, after encountering difficulties in securing the drugs needed for its three-drug protocol, Oklahoma became the first state to use pentobarbital in a lethal injection when it put John David Duty to death. The Oklahoman reports that “Since then, Oklahoma has executed three prisoners using pentobarbital. The last one was in Gary Roland Welch in January. Welch was convicted of first-degree murder in 1996.”

In 2015 the state again recorded a death penalty first when it added nitrogen hypoxia to its menu of authorized execution methods.

Execution by nitrogen hypoxia requires an inmate “to be placed in a sealed chamber or wear a special mask. The process involves slowly replacing oxygen with nitrogen.” However, Oklahoma has not yet developed a protocol for using it.

The state was not a pioneer in using midazolam, the drug at the center of the ongoing federal trial. That drug was first used in Florida in 2013 and Ohio in 2014.

Oklahoma got on board with using it in the run up to the April 2014 execution of Clayton Lockett.

The Death Penalty Information Center (DPIC) reports that a total of seven states have used midazolam as “the first drug in the three-drug protocol: Florida, Ohio, Oklahoma, Alabama, Virginia, Arkansas, and Tennessee.” The DPIC says that two states (Ohio and Arizona) have used it with hydromorphone in a two-drug protocol, and three states, including Oklahoma, have, at some point, considered using midazolam in a two-drug protocol (the others are Louisiana and Kentucky).

Oklahoma has the dubious distinction of being a leader in botched executions and in execution errors. In January 2015 it mistakenly used a drug not authorized by its execution protocol when it executed Charles Warner.

During the first week of the current federal trial, Judge Friot heard testimony from plaintiffs’ expert witnesses who described the risks and problems encountered in midazolam executions. They said that the drug could not be relied on to ensure inmates were sedated enough to ensure they would not feel pain during their executions.

One expert, the Mayo Clinic’s Dr. Mark Edgar, testified that two people recently executed in Oklahoma suffered from pulmonary edema during their executions. This means that their lungs filled with fluid while they were still alive, creating what Edgar called, “a sense of ‘doom, panic, drowning and asphyxiation.’”

Judge Friot also heard from doctor and firearms expert, Dr. James Williams, who called the firing squad “feasible, practical and effective” as an alternative to lethal injection.

By the end of the week state officials had begun to present their defense.

They called their own experts, including Dr. Ervin Yen, an Oklahoma City anesthesiologist and former Republican state senator who testified that the Oklahoma executions he witnessed were properly carried out.

Department of Corrections head Scott Crow and Justin Farris, the agency’s chief of operations. both defended the state’s current drug cocktail. They contended that Oklahoma’s recent executions all have been conducted according to the requirements of the state’s protocol.

As the Oklahoma litigation continues, the court will have to untangle the lethal injection puzzle. Once confidently touted as a safe and sure way for the government to go about executing people, its record is anything but stellar. Indeed, of all execution methods used in the United States, it is the one that is most frequently botched.

Whatever Judge Friot ultimately decides, legal and political arguments about lethal injection will continue. But if he were to find for the plaintiffs, his decision might put Oklahoma at the forefront of a nationwide re-examination of midazolam, lethal injection, and the belief that executions can be humane.

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