This view of Oklahoma’s death chamber is from the viewing chamber where media and other witnesses watch executions. Photo courtesy Oklahoma Department of Corrections.
Attorneys for a number of inmates held on Oklahoma’s death row filed an updated complaint in federal court on Monday, the latest step in the saga of the return of the death penalty in the state.
The lawsuit, which is attempting to halt the eventual executions of dozens of inmates on death row, alleges that Oklahoma’s new death penalty protocol violates the inmates’ civil rights in a number of different ways. It also lays out what the attorneys feel are a number of failings in the new protocol.
They allege that the inmates’ First, Fifth, Six, Eighth and Fourteenth Amendment rights are being violated under the new protocol, which returns Oklahoma to the lethal injection method of executions it halted in 2015 following a series of mistakes in the death chamber.
The complaint states that the protocol gives Oklahoma Department of Corrections Director Scott Crow discretion to change some death penalty policies on the fly “if necessary,” meaning that an inmate might be executed without being able to argue in court against a last-minute change in one or more execution policies.
Among other arguments, the complaint also states that the current three-drug method of executions (midazolam to sedate the inmate, vecuronium bromide to paralyze them, and potassium chloride to stop the heart,) “carries significant risks of pain and suffering.”
Federal law allows for inmates to be executed with “an ultrashort-acting barbiturate,” the complaint states. It argues midazolam “imposes atypical and significant hardship on Plaintiffs beyond the ordinary for those facing execution.”
Oklahoma has been conducting lethal injection executions since 1990. In 2015 the state halted executions after three high-profile mishaps, including the botched execution of Clayton Lockett, and the use of the wrong drug — potassium acetate — had been used instead of potassium chloride.
Months later, the state having realized it had secured the wrong drug again for the execution of Richard Glossip, records show an intense debate broke out over where the drugs were able to legally be substituted for one another. Steve Mullins, general counsel for then-Gov. Mary Fallin, told those dissenting to the use of the wrong drug to “google it,” and learn that the drugs had essentially the same effect.
Staying Glossip’s execution “would look bad,” Mullins argued according to a grand jury’s findings, because the state had already used potassium acetate to kill Warner months earlier.
The state attempted multiple times to execute Glossip, however courts intervened and spared Glossip, who remains on death row and will presumably be the first person set for execution whenever Oklahoma resumes the practice.
Following those troubles, the state announced in 2018 that it would switch course and execute inmates using the process of inert gas inhalation, a supposedly painless method where oxygen is replaced with an inert gas — nitrogen in this case — and the inmates passes out and suffocates. Like with lethal injection, there are arguments over whether or not that process is truly painless, though it remains a legal method of execution.
However, Oklahoma could never secure a device necessary to replace an inmate’s oxygen with nitrogen, and in 2020 the state announced it would return to lethal injection as an execution method.
Attorney General Mike Hunter said at the time that Oklahoma had located a supply of the three drugs needed to carry out an execution, but a spokesman for the Oklahoma Department of Corrections later specified that they did not keep the drugs on hand, only that they believed the could acquire the drugs when necessary.
For now, the death penalty remains on hold in Oklahoma. There are currently 47 people on Oklahoma’s death row, 46 men and one woman.
