Federal judge to hear arguments Monday on constitutional challenge to Oklahoma death penalty

OKLAHOMA CITY — Nearly eight years after a group of Oklahoma death row inmates challenged the state’s execution protocols, a federal judge on Monday will begin hearing arguments over their constitutionality.

On trial are the state’s long-beleaguered execution protocols, and in particular, one of the key drugs that the state relies on to put inmates to death — midazolam.

In all, 28 death row inmates and their attorneys are attempting to prove that the execution protocol and the use of midazolam — the first drug administered as part of Oklahoma’s three-drug lethal injection cocktail — create a risk of serious pain and suffering and that there are alternatives that could curtail those risks. The inmates argue the state’s protocols violate their Eighth Amendment guarantee against cruel and unusual punishment.

Relying on the testimony of several doctors, the inmates’ attorneys plan to argue that firing squads, an alternative lethal injection protocol using a barbiturate plus opioid, or a pre-dose of fentanyl would be suitable alternatives that would reduce “a substantial risk of severe pain,” and that each method could be readily implemented.

The Oklahoma Attorney General’s Office, meanwhile, plans to argue that for the inmates to prevail, they must prove that the state’s lethal injection procedure creates a certain or very likely “demonstrated risk of severe pain.” The inmates also must prove there’s an available alternative.

Oklahoma attorneys argue in federal court filings that a risk of pain is inherent in any execution method, and that the U.S. Constitution doesn’t require the avoidance of all pain. Nor does it force a state to be the first to experiment with an execution method.

The state, meanwhile, has its own slate of doctors who will testify about the efficacy of midazolam — the drug supposed to induce unconsciousness — as well as Department of Corrections officials who plan to tell U.S. District Judge Stephen Friot that they’ve since corrected and updated execution training and protocols, according to court filings.

Those prison officials also plan to testify that they’ve had difficulties obtaining alternative execution drug options such as pentobarbital and sodium thiopental, and no reputable lab is willing to create pentobarbital for the Oklahoma DOC. Fentanyl, too, is unavailable, they argue in federal court filings.

The Attorney General’s Office declined to comment ahead of the trial.

Jennifer Moreno, an attorney for the death row inmates, said last year’s execution of John Grant as well as mistakes made in the executions of Clayton Lockett and Charles Warner in 2014 and 2015 show that the state’s execution method “is extremely problematic.” She said attorneys will present overwhelming evidence that the midazolam protocol creates an unconstitutional risk of pain and suffering.

“Evidence from numerous executions shows that prisoners suffered pulmonary edema during the process - an agonizing experience akin to waterboarding. Midazolam does not induce and maintain prisoners in a state of unconsciousness, and they will experience the pain caused by the second and third execution drugs,” Moreno said in a statement. “They will also feel like they are drowning. In addition, Oklahoma’s use of a paralytic as the second drug exacerbates the risk inherent in this protocol. The paralytic serves no legitimate purpose other than to make it appear as if death is occurring peacefully while hiding any suffering and expressions of pain that occur.”

She said they plan to demonstrate that Oklahoma’s execution protocol is high-risk and lacks detail to ensure that if a problem arises executioners can address them in a manner that ensures the constitutionality of the procedure.

“In the end, Oklahoma’s lethal injection protocol cannot ensure executions that are safe, legal, and humane,” Moreno said.

The state’s problems with executions date back to 2014 when it bungled the execution of Lockett, who took 43 minutes to die from the state’s three-drug cocktail of midazolam, vecuronium bromide and potassium chloride. Witnesses reported that Lockett writhed and appeared to be conscious at points during the execution, leading critics to question whether midazolam was powerful enough to render a person unconscious. A state investigation later found that an IV used to administer the lethal drugs to Lockett had come loose, but wasn't immediately noticed, during the execution.

The state then used a non-approved drug in the January 2015 execution of Charles Warner and then nearly did the same thing when preparing to execute Richard Glossip, the lead plaintiff in the federal case. Glossip had been scheduled to die for his role in a 1997 murder-for-hire plot, but then-Gov. Mary Fallin issued a last-minute stay after the drug mix-up was discovered. Glossip remains on death row, his execution on pause pending the outcome of the case.

Following the two execution mishaps, the U.S. Supreme Court in 2015 upheld Oklahoma’s execution procedure that relied on midazolam to render unconsciousness. At the time, Oklahoma was one of five states that used midazolam.

However, former Oklahoma Attorney General Mike Hunter promised that he would not attempt executions with the pending federal lawsuit.

But after Hunter’s abrupt resignation in June, his successor John O’Connor asked an Oklahoma appeals court to set execution dates for seven prisoners who were not part of the federal lawsuit.

Oklahoma ended a nearly seven-year execution moratorium in October 2021 when DOC officials used its new lethal injection protocols to put Grant to death. Media witnesses reported Grant convulsed and vomited. An autopsy later confirmed that Grant vomited, aspirated and inhaled stomach contents into his airways.

The state has since executed three more who were on death row. Those executions reportedly occurred without incident.

In all, there are 42 inmates on Oklahoma death row, and 26 have exhausted their appeals, according to the Attorney General’s Office.

Source: mcalesternews.com, Janelle Stecklein, February 25, 2022

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