10^th Circuit Rules That Capital Prisoners Do Not Have a Right to Have Counsel Present Throughout Their Execution

On October 19^th, 2022, the U.S. Court of Appeals for the Tenth Circuit ruled against Oklahoma death-row pris­on­ers who had argued that they should be allowed to have their attor­ney present through­out their exe­cu­tion so that coun­sel could inter­vene and file for emer­gency relief if a prob­lem arose dur­ing the execution. 

The pris­on­ers pre­sent­ed evi­dence of a rash of botched exe­cu­tions in Oklahoma since 2014. Five of the eight exe­cu­tions per­formed in Oklahoma since April 2014 have involved sig­nif­i­cant prob­lems, includ­ing fail­ure to prop­er­ly set an IV line and admin­is­tra­tion of incor­rect drugs. Despite those fail­ures, the Court of Appeals deter­mined that the 28 peti­tion­ers failed to demon­strate that the pat­tern of mal­prac­tice is like­ly to con­tin­ue in their indi­vid­ual exe­cu­tions. The court wrote, ​“Oklahoma’s ear­li­er prob­lems in the exe­cu­tion cham­ber are not enough to show that future sim­i­lar prob­lems are immi­nent, much less prob­lems ris­ing to an Eighth Amendment violation.” 

Oklahoma’s pro­to­col bars a prisoner’s attor­ney from being present dur­ing the prepa­ra­tion for an exe­cu­tion, and gives the facil­i­ty direc­tor dis­cre­tion over whether the attor­ney may wit­ness the entire exe­cu­tion. Attorneys are not giv­en access to a phone dur­ing the exe­cu­tion. This means that if the exe­cu­tion goes wrong, the attor­ney might not be aware that there is a prob­lem, or even if they are, they will not be able to con­tact a court for inter­ven­tion, leav­ing their client to suf­fer a botched, painful execution.

Oklahoma’s string of botched exe­cu­tions began in 2014. Clayton Lockett’s IV was improp­er­ly placed, which caused him to spend forty-three min­utes writhing in pain before he died of a heart attack. The para­medic respon­si­ble for plac­ing the IV line blamed this on the inac­cu­rate claim that Black peo­ple have small­er veins than white peo­ple do. Six months lat­er, Charles Warner was exe­cut­ed with the wrong drug, and his last words were ​“My body is on fire.” The fact that he was giv­en the wrong drug was not dis­cov­ered for sev­er­al months, when Oklahoma offi­cials obtained the same incor­rect drug as they were prepar­ing to exe­cute Richard Glossip. 

Glossip’s exe­cu­tion was called off at the last minute, and the state tem­porar­i­ly halt­ed exe­cu­tions. A bipar­ti­san com­mis­sion of judges, politi­cians, attor­neys, law pro­fes­sors, and vic­tims’ advo­cates reviewed the state’s death-penal­ty sys­tem and rec­om­mend­ed 46 reforms. Five years lat­er, with the state plan­ning a 2‑year exe­cu­tion spree of 25 pris­on­ers, the chairs of the com­mis­sion wrote that ​“vir­tu­al­ly none of our rec­om­men­da­tions have been adopted.”

In an attempt to reduce human error, Oklahoma devel­oped a ​‘shad­ow board’ sys­tem to check the drugs before they were admin­is­tered; offi­cials were required to match col­or-cod­ed syringes with spe­cif­ic slots on the board to make sure they were admin­is­ter­ing the cor­rect med­ica­tion. There have been at least three exe­cu­tions since the imple­men­ta­tion of this sys­tem where the wrong drug was placed in a slot, but the exe­cu­tion pro­ceed­ed any­way. The dis­trict court also found that it was like­ly that the same error occurred in a fourth exe­cu­tion. The next two exe­cu­tions per­formed in Oklahoma occurred after the dis­trict court had heard evi­dence in this case, so they have not been investigated. 

Another prob­lem the pris­on­ers allege with Oklahoma’s lethal-injec­tion pro­to­col is that its three-drug cock­tail uses the seda­tive mida­zo­lam, which has faced numer­ous chal­lenges in mul­ti­ple states, includ­ing alle­ga­tions that it can­not suf­fi­cient­ly anes­thetize a per­son from the pain of the fol­low­ing two drugs, and will cause that per­son to suf­fer severe pain dur­ing their exe­cu­tion. Midazolam has been linked to mul­ti­ple flawed exe­cu­tions: In 2017, there were 11 exe­cu­tions which used mida­zo­lam, and in more than 60%, eye­wit­ness­es report­ed see­ing defen­dants gasp, clench their fists, and writhe, even when they should have been ful­ly sedat­ed by the drug. 

The peti­tion­ers argued that if Oklahoma’s pro­to­col is allowed to remain in place with­out access to coun­sel dur­ing their exe­cu­tions, their First, Fifth, and Sixth amend­ment rights would be vio­lat­ed, because there would be no oppor­tu­ni­ty for them to access the courts or receive due process if a problem arises.

A dis­trict court ini­tial­ly reject­ed the peti­tion­ers’ claims that Oklahoma’s cur­rent pro­to­col will ​“like­ly cause them extreme pain and suf­fer­ing.” Based on that rul­ing, the 10^th Circuit then dis­missed the peti­tion­ers’ claim that they have a right to coun­sel and to access the courts because, accord­ing to the low­er court, they only face a ​“gener­ic pos­si­bil­i­ty that some­thing might go wrong dur­ing their indi­vid­ual exe­cu­tions.” That gener­ic pos­si­bil­i­ty, the Circuit Court ruled, is not suf­fi­cient to guar­an­tee them access to their coun­sel or the courts.