Federal Judge Upholds Oklahoma Lethal-Injection Protocol, Rejecting Prisoners’ Evidence of Torturous Executions

Judge Stephen Friot (pic­tured) of the U.S. District Court for the Western District of Oklahoma has ruled that Oklahoma​’s lethal-injec­tion pro­to­col is con­sti­tu­tion­al. After hold­ing a week-long hear­ing on the state’s three-drug pro­to­col in February and March 2022, Judge Friot cred­it­ed the tes­ti­mo­ny of state experts over the pris­on­ers’ expert tes­ti­mo­ny on the like­li­hood that the pro­to­col would result in severe pain. While attor­neys for the 28 pris­on­ers who brought the suit can appeal the rul­ing, Oklahoma’s Attorney General plans to seek exe­cu­tion warrants immediately.

Judge Friot ruled on June 6, 2022 that Oklahoma’s pro­to­col of mida­zo­lam (a seda­tive), vecuro­ni­um bro­mide (a par­a­lyt­ic), and potas­si­um chlo­ride (a drug that stops the heart) does not vio­late the Eighth Amendment ban on cru­el and unusu­al pun­ish­ment. In par­tic­u­lar, he addressed the argu­ment that mida­zo­lam is not suf­fi­cient to ren­der a pris­on­er insen­sate to pain, writ­ing, ​“The evi­dence per­suades the court, and not by a small mar­gin, that even though mida­zo­lam is not the drug of choice for main­tain­ing pro­longed deep anes­the­sia, it can be relied upon, as used in the Oklahoma exe­cu­tion pro­to­col, to ren­der the inmate insen­sate to pain for the few min­utes required to com­plete the exe­cu­tion.” By con­trast, med­ical experts tes­ti­fy­ing in sup­port of the pris­on­ers described pul­monary ede­ma found in autop­sies of exe­cut­ed pris­on­ers, and said it was a ​“vir­tu­al med­ical cer­tain­ty” that the four pris­on­ers exe­cut­ed in 2021 and 2022 under Oklahoma’s cur­rent pro­to­col ​“expe­ri­enced extreme pain and suffering.”

Jennifer Moreno, an attor­ney for the pris­on­ers, said in a state­ment, ​“The dis­trict court’s deci­sion ignores the over­whelm­ing evi­dence pre­sent­ed at tri­al that Oklahoma’s exe­cu­tion pro­to­col, both as writ­ten and as imple­ment­ed, cre­ates an unac­cept­able risk that pris­on­ers will expe­ri­ence severe pain and suf­fer­ing.” She said her team is ​“assess­ing our options for an appeal.”

Attorney General John O’Connor called the rul­ing ​“defin­i­tive” and said it brought the cas­es ​“one step clos­er to jus­tice.” He indi­cat­ed that his office will imme­di­ate­ly request that the Oklahoma Court of Criminal Appeals set exe­cu­tion dates for pris­on­ers who have com­plet­ed their appeals.

During the fed­er­al tri­al on the exe­cu­tion pro­to­col, the pris­on­ers pre­sent­ed graph­ic pho­to­graph­ic evi­dence from the botched exe­cu­tion of John Grant, autop­sy results show­ing that Grant and fel­low death-row pris­on­er Bigler Stouffer suf­fered flu­id build-ups in their lungs as they were put to death, and autop­sy evi­dence that Grant aspi­rat­ed vom­it dur­ing his exe­cu­tion. They also pre­sent­ed doc­u­men­tary evi­dence that mem­bers of Oklahoma’s exe­cu­tion team filled out paper­work indi­cat­ing the state had used an unau­tho­rized chem­i­cal in place of the par­a­lyt­ic drug required in the state’s execution protocol.

Judge Friot acknowl­edged the con­tra­dic­to­ry facts pre­sent­ed by the state and the defense. He wrote, ​“Rarely, in any field of lit­i­ga­tion, does a court see and hear well-qual­i­fied expert wit­ness­es giv­ing expert tes­ti­mo­ny as square­ly – and emphat­i­cal­ly– con­tra­dic­to­ry, on the issues at the heart of the mat­ter, as this case.” Ultimately, he relied pri­mar­i­ly on the tes­ti­mo­ny of Dr. Ervin Yen, an anes­the­si­ol­o­gist, for­mer Republican state sen­a­tor, and inde­pen­dent can­di­date for Oklahoma gov­er­nor, who Friot referred to as ​“a fresh face,” in con­trast to oth­er experts who had pre­vi­ous­ly tes­ti­fied on mida­zo­lam in oth­er states. In his tes­ti­mo­ny, Dr. Yen called the pro­to­col ​“ade­quate to car­ry out an exe­cu­tion in as humane a way as possible.” 

In rul­ing against the pris­on­ers, Judge Friot ref­er­enced U.S. Supreme Court rul­ings on lethal injec­tion, explain­ing that, in order for an exe­cu­tion method to be found uncon­sti­tu­tion­al, the Court requires pris­on­ers to prove that it ​“is sure or very like­ly to cause seri­ous ill­ness and need­less suf­fer­ing.” ​“The plain­tiff inmates have fall­en well short of clear­ing the bar set by the Supreme Court,” he wrote.