Oklahoma

Oklahoma

One Year After Botched Execution, Many States Still Haven't Resumed Executions

On July 23, 2014, Arizona's execution of Joseph Wood was botched, taking nearly two hours from the time the state began injecting him with lethal drugs until he was finally pronounced dead. Witnesses reported that Wood gasped more than 640 times during the course of the execution, and an official report later revealed that he was injected with 15 doses of the execution drugs. Michael Kiefer, a reporter for the Arizona Republic, who witnessed Wood's execution, described it, saying, "He gulped like a fish on land. The movement was like a piston: The mouth opened, the chest rose, the stomach convulsed." Arizona used a combination of midazolam, the drug recently reviewed by the Supreme Court in Glossip v. Gross, and hyrdromorphone, a narcotic. Wood's lawyer, Dale Baich, describing the execution, said "The experiement failed." The same drug protocol had been used in Ohio's botched execution of Dennis McGuire earlier in 2014 and witnesses to an October 2014 execution by Florida using midazolam reported that the death took longer than usual. In the year since Wood's execution, Arizona has not carried out any executions as a stay issued by a federal judge remains in place. In that time, Oklahoma and Florida have used midazolam in a total of three executions, with Charles Warner in Oklahoma saying "My body is on fire." Both states temporarily put executions on hold while the Supreme Court review was underway, but indicate they intend to resume executions now that the use of midazolam has been upheld. An Oklahoma federal court has scheduled a trial for 2016 on Oklahoma's use of midazolam. All other executions since Wood's have used a one-drug protocol of pentobarbital, likely obtained from compounding pharmacies, since the primary manufacturer of the drug opposes its use in executions. Ohio delayed all executions until at least 2016 to review executions procedures, and executions in Tennessee are on hold because of legal challenges to its lethal injection protocols. Georgia is conducting an investigation into problems with execution drugs and has not set new execution dates as a result.

Supreme Court Narrowly Upholds Use of Lethal Injection Drug

On June 29, the U.S. Supreme Court held (5-4) in Glossip v. Gross that Oklahoma inmates "failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment." Three inmates on Oklahoma's death row had challenged the state's use of midazolam as the first drug in a three-drug protocol, saying that it "fails to render a person insensate to pain." In a narrow decision written by Justice Samuel Alito, the Court deferred to a District Court ruling upholding the use of midazolam. Justice Alito said that, in order to prevail, the inmates would have had to identify a "known and available alternative method" that has a lower risk of pain. The decision will allow states that use midazolam, including Oklahoma, to resume executions, though they can still consider alternatives. In a sweeping dissenting opinion raising deep concerns about the death penalty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, "I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution....Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use."

Supreme Court Hears Challenge to Oklahoma's Lethal Injection Protocol

On April 29, the U.S. Supreme Court heard oral argument in Glossip v. Gross, a case challenging the use of midazolam in lethal injections. Midazolam was used as the first drug in three botched executions in 2014, including the execution of Clayton Lockett in Oklahoma exactly one year ago. Prisoners on Oklahoma's death row argued that midazolam should not be used in executions because it could not reliably anesthesize the prisoner to prevent him or her from experiencing extreme pain when the second and third drugs in Oklahoma's execution protocol were injected. The Justices questioned both sides intensely, with the more conservative justices generally favoring the state's arguments and the more liberal justices favoring the prisoners' arguments. Justice Elena Kagan compared the effects of potassium chloride, the third execution drug, to being burned alive, saying, "Suppose that we said we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects." Conservatives on the Court criticized the case as a veiled attacked on the death penalty itself. The Court is expected to decide the case before the current term ends in June. 

Eric Holder Advocates for a Hold on Executions

U.S. Attorney General Eric Holder recommended that all executions be put on hold while the Supreme Court is considering Glossip v. Gross, a case involving Oklahoma's lethal injection procedure. Speaking for himself, rather than the administration, at a press luncheon on February 17, Holder said, "I think a moratorium until the Supreme Court makes that decision would be appropriate." Holder has previously criticized state secrecy in lethal injections, but voiced broader concerns about executing the innocent in his remarks: “Our system of justice is the best in the world. It is comprised of men and women who do the best they can, get it right more often than not, substantially more right than wrong. But there's always the possibility that mistakes will be made...There is no ability to correct a mistake where somebody has, in fact, been executed. And that is from my perspective the ultimate nightmare.” Holder said that the Department of Justice's review of the death penalty, which President Obama ordered after the botched execution of Clayton Lockett, is still underway, and is unlikely to be finished before Holder steps down as Attorney General.

January's Executions Underscore Core Death Penalty Problems

Even as executions have declined in the U.S., those being carried out often illustrate serious problems that have plagued the death penalty for many years. Of the six executions January, two (in Florida and Oklahoma) involved a lethal injection protocol that is now under review by the U.S. Supreme Court. Georgia executed Andrew Brannan, a decorated Vietnam War veteran with Post-Traumatic Stress Disorder, and Warren Hill, an inmate who was found intellectually disabled by state doctors, but who failed to meet the state's highly unusual standard of proving his disability "beyond a reasonable doubt." Texas executed Robert Ladd, an inmate with an IQ of 67. Texas courts have devised their own largely unscientific criteria for determining intellectual disabilty. That leaves Arnold Prieto, also executed in Texas. He was offered a plea bargain and probably would have been spared if he had testified against his co-defendants. Of those involved in the brutal crime, only Prieto received the death penalty.

Supreme Court Agrees to Review Oklahoma's Lethal Injections

On January 23 the U.S. Supreme Court agreed  to hear a challenge to Oklahoma's lethal injection procedures, particularly its use of midazolam that was used in three botched executions in 2014. Four Oklahoma inmates asked the Court to review the state's procedures, but one of them, Charles Warner, was executed before the Court agreed to take the case. It is likely the other three defendants will be granted stays. When Warner was executed, Justice Sotomayor along with three other Justices, dissented from the denial of a stay, saying, "I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol...." The case will be argued in April and likely decided by the end of June. The questions presented by the petitioners appear below. Florida uses the same drugs as Oklahoma.

NEW VOICES: Anesthesiologist Points to Risks in Upcoming Executions

As Oklahoma prepared to carry out its first execution on January 15 since the botched execution of Clayton Lockett in April 2014, anesthesiologist Dr. Mark Heath of Columbia University Medical School expressed serious concerns about the drugs it will use, particularly one that paralyzes the inmate: "Oklahoma and other states ... should abandon the barbaric use of paralyzing drugs entirely." He explained that when the prisoner is given paralytic drugs, he "will die of suffocation whether they are unconscious or they are wide awake." Dr. Heath also criticized the use of midazolam, which Oklahoma plans to use again, despite the problems in multiple states with that drug in 2014. He said it is particularly ill-suited as the first lethal injection drug because it is a weaker anesthetic than barbiturates, such as pentobarbital. In an op-ed, he concluded, "Oklahoma and other states should not be executing prisoners with midazolam; they should not proceed in the absence of qualified medical practitioners; they should only use FDA-approved drugs, and they should abandon the barbaric, outmoded and unnecessary use of chemical paralysis – ....The public and the courts could then return their attention to the more important questions and debate surrounding the death penalty enterprise."

Oklahoma Warden Called Recent Execution a "Bloody Mess"

Attorneys for several inmates in Oklahoma have asked a federal court to stay their executions and presented new accounts of the botched execution of Clayton Lockett (pictured) as evidence the state's execution procedure is unconstitutionally cruel. The recent filing included statements describing the execution from the warden, an attending paramedic, and a victims' services advocate who witnessed the execution. Warden Anita Trammell called the execution, "a bloody mess," and said, "I was kind of panicking. Thinking oh my God. He’s coming out of this. It’s not working.” Edith Shoals, a victims' services advocate for the Department of Corrections, witnessed the execution from an overflow room and said, “It was like a horror movie … [Lockett] kept trying to talk.” The paramedic who participated in the execution described the doctor's failed attempts to insert an IV, saying, "I don’t think he realized that he hit the artery and I remember saying you’ve got the artery. We’ve got blood everywhere." Lockett was pricked at least 16 times in attempts to insert the IV. The doctor declined to set a backup IV line, as called for in the execution protocol, explaining, "We had stuck this individual so many times, I didn’t want to try and do another line." Mike Oakley, a former general counsel for the Department of Corrections, said "political pressure" played a role in the selection of execution drugs. “[T]he attorney general’s office, being an elective office, was under a lot of pressure. The, the staff over there was under a lot of pressure to, to say, ‘Get it done,’ you know, and so, yeah, I, I think it was a joint decision but there was, I got to say there was a definite push to make the decision, get it done, hurry up about it.”

Pages