Executions Remain On Hold as Federal Litigation on Oklahoma’s ​‘Risky and Incomplete’ Lethal-Injection Protocol Moves Forward

Oklahoma will not seek to car­ry out any exe­cu­tions while lit­i­ga­tion con­tin­ues in fed­er­al court on the state’s lethal-injec­tion pro­to­col, a U.S. fed­er­al dis­trict court judge has announced.

At a May 5, 2020 hear­ing on the Oklahoma death-row pris­on­ers’ exe­cu­tion law­suit, Judge Stephen Friot (pic­tured) of the U.S. District Court for the Western District of Oklahoma ordered state offi­cials to dis­close details of plans to train cor­rec­tions offi­cers to car­ry out exe­cu­tions, set­ting a June 5 dead­line to do so. Lawyers rep­re­sent­ing the pris­on­ers had crit­i­cized the new pro­to­col as ​“risky and incom­plete,” cit­ing the com­plete absence of detail on how the state will train execution staff. 

Judge Friot also set a brief­ing sched­ule for the par­ties once Oklahoma pro­vides its train­ing plan. The court gave the pris­on­ers one month — until July 6 — to amend their com­plaint and direct­ed that Oklahoma respond to the pris­on­ers’ amend­ments with­in 21 days of their fil­ing. Defense lawyers called the sched­ul­ing order a ​“rea­son­able time­frame” to brief the issues. ​“Today’s order estab­lish­es that Oklahoma offi­cials must dis­close key details about exe­cu­tion per­son­nel train­ing,” Dale Baich, one of the lawyers rep­re­sent­ing the Oklahoma death-row pris­on­ers, said. ​“There is noth­ing more essen­tial to min­i­miz­ing a risk of anoth­er mishap in Oklahoma’s exe­cu­tions than to ensure the indi­vid­u­als car­ry­ing out the exe­cu­tion are thor­ough­ly trained. … It is no secret that inad­e­quate train­ing is the sig­nif­i­cant fac­tor as to why there were prob­lems in Oklahoma’s past executions.” 

Oklahoma’s February 13 announce­ment that it had adopt­ed a new exe­cu­tion pro­to­col raised ques­tions about when the state could resume exe­cu­tions, because an ear­li­er agree­ment required the state to wait 150 days after releas­ing a pro­to­col before set­ting new exe­cu­tion dates. The pris­on­ers argued that the pro­to­col did not com­ply with the agree­ment and there­fore did not start the 150-day clock. Judge Friot revealed at the hear­ing that Oklahoma Attorney General Mike Hunter had promised not to sched­ule any exe­cu­tions until the court case concludes. 

In February, Hunter announced that the state had found a ​“reli­able source” of exe­cu­tion drugs and would resume exe­cu­tions by lethal injec­tion, rather than shift­ing to nitro­gen hypox­ia. He filed a revised exe­cu­tion pro­to­col with the court, say­ing it had made changes in the old pro­to­col to ​“sim­ply add more checks and bal­ances, more safe­guards to the sys­tem, to ensure that what has hap­pened in the past won’t hap­pen again.” Oklahoma botched the exe­cu­tion of Clayton Lockett in 2014, used the wrong drug in the exe­cu­tion of Charles Warner in January 2015, and halt­ed the September 2015 exe­cu­tion of Richard Glossip at the last minute after again obtain­ing the incor­rect drug. It has not con­duct­ed an execution since. 

Under the new pro­to­col, Oklahoma plans to use the same con­tro­ver­sial three-drug lethal-injec­tion pro­to­col that was impli­cat­ed in the 2014 and 2015 botched exe­cu­tions: mida­zo­lam (a seda­tive), vecuro­ni­um bro­mide (a par­a­lyt­ic), and potas­si­um chlo­ride, which stops the prisoner’s heart. The pris­on­ers chal­lenged that new pro­to­col, say­ing its pro­vi­sions on train­ing amount­ed to a mean­ing­less promise that, at some unspec­i­fied time in the future, the Department of Corrections ​“will estab­lish pro­to­cols and train­ing to enable staff to func­tion in a safe, effec­tive and pro­fes­sion­al man­ner before, dur­ing and after an execution.” 

An Oklahoma grand jury and an inde­pen­dent Death Penalty Review Commission ​“both iden­ti­fied sig­nif­i­cant flaws in the department’s pre­vi­ous train­ing pro­gram,” Baich said. “[U]ntil the state devel­ops and releas­es details about the new train­ing pro­to­cols, the court can­not eval­u­ate, and the pub­lic can­not have con­fi­dence in, the department’s readi­ness to con­duct constitutional executions.”