Oklahoma Prisoners Challenge New Execution Protocol in Federal Court

Less than two weeks after Oklahoma offi­cials announced that the state would return to the same con­tro­ver­sial three-drug exe­cu­tion pro­to­col impli­cat­ed in a series of botched exe­cu­tions in 2014 and 2015, the state’s death-row pris­on­ers have asked a fed­er­al court to reac­ti­vate their law­suit chal­leng­ing the state’s exe­cu­tion process. The February 27, 2020 fil­ing in the United States District Court for the Western District of Oklahoma called the new pro­to­col ​“incom­plete” and said it failed to com­ply with the terms of an agree­ment that had put exe­cu­tions in the state on hold in 2015. A news release accom­pa­ny­ing the prisoner’s court fil­ing described the new pro­to­col as ​“risky” and ​“a recipe for anoth­er Oklahoma execution disaster.” 

The fed­er­al court admin­is­tra­tive­ly closed the pris­on­ers’ law­suit in October 2015 after lawyers for the state and the pris­on­ers reached a Joint Stipulation that Oklahoma would not seek to resume exe­cu­tions until the state had pro­vid­ed notice that it had com­plet­ed an inves­ti­ga­tion into the exe­cu­tion fail­ures, devel­oped a new exe­cu­tion pro­to­col, and shown that the Oklahoma Department of Corrections ​“will be able to com­ply with the express terms of the Protocol.” The motion alleges that the new pro­to­col, announced on February 13, does not sat­is­fy the con­di­tions of the stip­u­la­tion, stat­ing that the man­dat­ed grand jury inves­ti­ga­tion has not been com­plet­ed and the pro­to­col itself is ​“incom­plete.”

When Oklahoma offi­cials announced their new pro­to­col, Attorney General Mike Hunter said the old pro­to­col had been revised 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.” The pris­on­ers’ motion strongly disagrees. 

First, the pris­on­ers say, the grand jury inves­ti­gat­ing the state’s botched exe­cu­tions pro­vid­ed only an inter­im report and nev­er com­plet­ed its inves­ti­ga­tion before its term of oper­a­tions expired. In addi­tion, they argue that the state has not pro­vid­ed notice regard­ing the nature and sta­tus of the one indict­ment the grand jury returned for review. The motion also argues that the pro­to­col is devoid of details on how the state will train exe­cu­tion staff, con­tain­ing instead 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.” 

Assistant fed­er­al defend­er Dale Baich, one of the attor­neys rep­re­sent­ing the pris­on­ers, said in a state­ment that ​“Oklahoma has a his­to­ry of bungling exe­cu­tions.… Now state offi­cials plan to resume exe­cu­tions using the same old pro­ce­dure, but they have not demon­strat­ed what will be dif­fer­ent this time. Their lack of plan­ning is a recipe for anoth­er Oklahoma exe­cu­tion dis­as­ter.” Baich high­light­ed the pris­on­ers’ con­cerns about the protocol’s incom­plete­ness and lack of trans­paren­cy. “[T]he courts can­not review pro­ce­dures that don’t exist,” he said, ​“and Oklahoma’s new pro­to­col has a place­hold­er promis­ing future plans where the plans should be. Rather than artic­u­late sub­stan­tive train­ing require­ments and oth­er nec­es­sary pro­ce­dures, the state’s Notice essen­tial­ly says, ​‘We’ll get around to that. Trust us.’” 

Executions in Oklahoma have been on hold since 2015, when the state obtained potas­si­um acetate, a chem­i­cal used to de-ice air­plane wings, instead of potas­si­um chlo­ride for the sched­uled exe­cu­tion of Richard Glossip. Glossip received a last-minute stay of exe­cu­tion as a result of the error. A report by The Oklahoman lat­er revealed that the state had used potas­si­um acetate in the January 15, 2015 exe­cu­tion of Charles Warner, whose last words were ​“my body is on fire.” The pre­vi­ous exe­cu­tion, that of Clayton Lockett on April 29, 2014, had been grue­some­ly botched. After 16 failed attempts 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. 

Under the Joint Stipulation that was put in place in after Glossip’s near-exe­cu­tion, Oklahoma must wait 150 days after announc­ing a new exe­cu­tion pro­to­col before set­ting any exe­cu­tion dates. Baich said, ​“It’s our posi­tion that the 150-day clock has not begun to run” because the pro­to­col issued February 13 is incomplete.