Oklahoma Federal Court Rules that Death-Row Prisoners’ Challenge to State’s Lethal Injection Protocol May Proceed to Trial

An Oklahoma fed­er­al judge has ordered a tri­al in a suit filed by the state’s death-row pris­on­ers chal­leng­ing the con­sti­tu­tion­al­i­ty of Oklahoma’s three-drug lethal-injec­tion process. Judge Stephen Friot of the U.S. District Court for the Western District of Oklahoma ruled on August 11, 2021 that the suit, which alleges that Oklahoma’s exe­cu­tion pro­to­col vio­lates the Eighth Amendment ban on cru­el and unusu­al pun­ish­ment, may pro­ceed to tri­al. Judge Friot denied sev­er­al oth­er claims, includ­ing those seek­ing more infor­ma­tion about the drugs to be used and alleg­ing that the exe­cu­tions process uncon­sti­tu­tion­al­ly denied the pris­on­ers access to coun­sel and the courts.

“Plaintiffs are pleased that the court agreed that the mer­its of their Eighth Amendment claim need to be heard in a full tri­al,” said Assistant Federal Public Defender Dale Baich, who is rep­re­sent­ing the pris­on­ers. ​“We look for­ward to pre­sent­ing our evi­dence in court.”

Oklahoma has indi­cat­ed that it intends to car­ry out exe­cu­tions using a three-drug com­bi­na­tion of the seda­tive mida­zo­lam, the par­a­lyt­ic drug vecuro­ni­um bro­mide, and the heart-stop­ping chem­i­cal, potas­si­um chlo­ride. The pris­on­ers’ law­suit seeks to ensure that if they are to be exe­cut­ed, Oklahoma does so in a man­ner that does not unnec­es­sar­i­ly sub­ject them to excru­ci­at­ing pain and suffering. 

The pris­on­ers’ law­suit alleges, based on exe­cu­tion-autop­sy results, that the use of mida­zo­lam caus­es a sense of suf­fo­ca­tion from ​“flash pul­monary ede­ma” — an almost imme­di­ate build-up of flu­id in the lungs — while the pris­on­er is con­scious, fol­lowed by ​“chem­i­cal suf­fo­ca­tion” as the par­a­lyt­ic drug shuts down the lungs, and the pain of being chem­i­cal­ly ​“burned alive” by the potas­si­um chlo­ride. The court ruled that, tak­en as true, these alle­ga­tions sup­port a claim that Oklahoma’s exe­cu­tion pro­to­col is uncon­sti­tu­tion­al­ly tor­tur­ous, and enti­tled the pris­on­ers to a tri­al to attempt to prove their claims.

Thirty-two death-row pris­on­ers were plain­tiffs in the fed­er­al law­suit. However, Judge Friot dis­missed the claims of six of the pris­on­ers who had declined to des­ig­nate alter­na­tive meth­ods by which they could be exe­cut­ed. In an ear­li­er stage of the lit­i­ga­tion, the U.S. Supreme Court ruled that a con­demned pris­on­er can­not show that a state’s exe­cu­tion method is uncon­sti­tu­tion­al­ly cru­el and unusu­al unless the pris­on­er demon­strates that the state is able to car­ry out the exe­cu­tion via a sig­nif­i­cant­ly less painful alter­na­tive method. The six pris­on­ers’ refusal to des­ig­nate an alter­na­tive method of exe­cu­tion, Fruit wrote, ​“is fatal to these plain­tiffs’ Eighth Amendment claims.”

The court has sched­uled a sta­tus con­fer­ence for the end of August and indi­cat­ed that the tri­al could start in January or February 2022. 

Oklahoma has not car­ried out an exe­cu­tion since January 15, 2015, when the Oklahoma Department of Corrections put Charles Warner to death using a chem­i­cal that was not autho­rized by the state’s exe­cu­tion pro­to­col. A report by The Oklahoman revealed that the state had used potas­si­um acetate, a chem­i­cal used to de-ice air­plane wings, in the exe­cu­tion, instead of potas­si­um chlo­ride. Warner’s last words were ​“my body is on fire.” 

The state’s pre­vi­ous exe­cu­tion, in which Clayton Lockett was put to death on April 29, 2014, was hor­ri­bly botched. After the exe­cu­tion team failed 16 times to set an IV line, one of Lockett’s veins explod­ed. Lockett died 45 min­utes into the pro­ce­dure of what was described at the time as a mas­sive heart attack. Oklahoma put exe­cu­tions on hold in September 2015, after Richard Glossip received a last-minute stay when the state once again obtained the wrong chem­i­cal to car­ry out his execution. 

As part of the lethal-injec­tion law­suit, Oklahoma agreed to wait at least 150 days after announc­ing any new exe­cu­tion pro­to­col before set­ting any exe­cu­tion dates. Baich said that the pris­on­ers’ posi­tion ​“is that no exe­cu­tion dates should be set while this lit­i­ga­tion exam­in­ing the effi­ca­cy of the exe­cu­tion meth­ods is pending.”