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.