Unable to purchase execution equipment, Oklahoma poised to build the device itself

For nearly 25 years, Oklahoma had a three-step process for killing killers.

If you were one of the 112 death row inmates put to death during that time frame, the process played out like this:

The first drug would numb you. Then the second drug would kick in and paralyze you to keep you from moving around on the death chamber table. The final drug would be administered to stop your heart.

So imagine everyone’s surprise when, about 10 minutes after he was deemed unconscious and as the heart-stopping potassium chloride was supposedly being administered, Clayton Lockett, the 111th person to be put to death in Oklahoma by lethal injection, opened his eyes.

Lockett had been convicted more than a decade prior of murdering Stephanie Neiman, a tough Perry girl who had recently graduated from high school and unwittingly crossed paths with Lockett one night as he and his accomplices were robbing a house.

Lockett’s crew drove Neiman and her friend, Bobby Bornt, out to a side road and dug Neiman a grave. Lockett wanted them to keep quiet about the robbery but Neiman stood her ground. Lockett shot her twice with a shotgun and had her buried in a roadside grave his accomplice had dug even though Neiman was still alive. Lockett threatened Bornt not to tell a soul, lest he end up in a shallow grave of his own.

Later, during Lockett’s court proceedings, Bornt wrote a victim impact statement, saying he believed lethal injection was “too easy a way” for Lockett to die.

In a way, he got his wish.

Inside the death chamber, to everyone’s astonishment, Lockett began to writhe and buck on the table. He was supposed to be blacked out and unable to breathe. His heart should have already stopped beating. Yet here he was.

“This shit is fucking with my mind,” he said. “The drugs aren’t working.”

The blinds were closed, shielding journalists and witnesses from what was happening in the death chamber. About 15 minutes later, then-Oklahoma Department of Corrections Director Robert Patton called off the execution, but it was too late. By 7:06 p.m., 43 minutes after the execution had begun, Lockett was dead.

Whoever becomes the next person to be executed in Oklahoma is going to face an entirely different experience than the last one.

Oklahoma was the first state to adopt lethal injection as an execution method in the 1970s, the first state in the nation to use pentobarbital (a powerful sedative) in executions and eventually could become the first state to use nitrogen hypoxia in the death chamber. (Two other states, Missouri and Alabama, have OK’d nitrogen hypoxia for use in executions, though none have yet been carried out.)

Or it might not. When it comes to the death penalty, Oklahoma is Sisyphus pushing a rock up a steep hill.

It turns out the same problems that plagued the state to the point it turned away from its old execution method are making it difficult for it to turn the page to its new one.

Department of Corrections Director Joe Allbaugh, who replaced Robert Patton after Patton’s departure in late 2015, has lamented the difficulties DOC faced trying to acquire execution drugs. He said drug suppliers feared backlash from anti-death penalty advocates and no one would sell the drugs to DOC.

It was so bad that in 2018 Allbaugh told reporters he had called “all around the world, to the back streets of the Indian subcontinent, to procure drugs.”

And while nitrogen hypoxia is no less controversial an execution method than lethal injection — critics have called it untested and pointed out that it’s not even an accepted way to kill cats and dogs — it was supposed to at least be an easier process. You simply replace someone’s oxygen intake with an inert gas, such as nitrogen. Out goes the carbon dioxide and in goes nitrogen.

In theory, the person painlessly suffocates before they even realize they’re not getting oxygen.

But in a meeting at the Oklahoma District Attorney’s Council last month, Oklahoma Attorney General Mike Hunter told attendees the state couldn’t obtain a device that would “appropriately introduce nitrogen into an individual’s system.”

“The dead ends that the director has experienced are at a point where we may and in fact we are likely to look to a state manufacturer to develop the machine,” Hunter said. “It really shouldn’t be that complicated.”

He said it would take a device that could regulate the introduction of nitrogen through a tube and into an airtight mask over the face of the to-be-executed inmate.

Hunter said he’s confident that inert gas inhalation would “pass Eighth Amendment scrutiny,” but “the challenge is getting the equipment that we need, and we’re at the point where we’re probably going to look for an in-state manufacturer.”

When Hunter announced in March 2018 that Oklahoma would be turning to the nitrogen hypoxia method, he said he thought the state could resume executions by the end of the year.

That didn’t happen. Now Hunter has said that if everything goes well with testing he thinks he can get it “submitted to court for review by the end of the year,” setting the stage for executions to resume in 2020.

“People in this state in 2016 reaffirmed their support for the death penalty (voters overwhelmingly supported a state question to enshrine the death penalty in Oklahoma’s state constitution) so we don’t have to apologize to anybody for supporting what the body politic believes needs to be the appropriate punishment for first-degree murder,” Hunter said.

The paramedic who was supposed to set Lockett’s IVs the night of his execution tried and failed numerous times over the course of an hour to get a line started, according to state investigators. That’s not necessarily unusual — inmates have been known to sometimes starve themselves and refuse liquids leading up to their execution, believing it shrinks their veins making them harder to stick.

To compensate, prison staff finally located a useable vein in Lockett’s right leg. This IV placement would leave Lockett exposed below the waist, so staff draped a towel over his groin to maintain his modesty.

Later, as they were attempting to start over and stick Lockett again (despite not having any drugs left,)the nervous doctor — a backup to the prison’s regular execution physician — placed the link in Lockett’s femoral artery rather than his femoral vein.

Place an IV in the femoral vein and drugs are administered properly. But stick the artery, where blood travels faster, and blood can pool back into the needle.

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That is exactly what happened. Suddenly it was a “Murphy’s execution” — everything that could go wrong was going wrong.

Anita Trammell, who was warden at McAlester’s Oklahoma State Penitentiary at the time, told investigators that Lockett’s execution was a “bloody mess,” and started talking about the eventuality of everyone on staff ending up in federal court. Other staffers later referred to the scene as being “like a horror movie.”

The paramedic who had tried to start the IVs on Lockett said the whole day was “a cluster.”

That’s not just because of the problems they faced with Lockett’s execution — they were supposed to kill Charles Warner two hours later, the first double-execution in state history.

But as the scope of what had gone wrong with Lockett’s execution started to dawn on everyone, Warner’s execution was called off. He was killed about nine months later (albeit with potassium acetate instead of potassium chloride, as the state later learned) and is still the last person to be executed in Oklahoma.

On the night Lockett and Warner were scheduled to die, then-Gov. Mary Fallin was at an Oklahoma City Thunder playoff game. Term-limited, she left the Governor’s Mansion in January.

Robert Patton was the DOC director. He retired and went home to Arizona where he now tweets about the Diamondbacks and NASCAR.

Scott Pruitt was the state’s attorney general. He’s … been through a lot since then.

When executions resume, it won’t just be the method that’s new, there’s a whole new cast of characters who’ll be in charge of making sure ghosts of executions past don’t happen again.

Gov. Kevin Stitt took office in January. Joe Allbaugh replaced Patton as DOC director in 2016 and Mike Hunter was appointed to replace Pruitt the following year.

Only Stitt offered a comment for this story. Speaking on the phone earlier this week between meetings, Stitt said he “doesn’t take (the death penalty) lightly.”

“I understand the seriousness of the issue,” he said. “But I am a supporter of the death penalty for the most heinous of crimes. When you think of the Timothy McVeighs and people who commit mass murders, I am supportive.”

Stitt, who just wrapped up his first 100 days in office and has been focused on state budget issues and putting together his cabinet, said he has not yet had much time to “work with the attorney general,” but said he anticipates turning his attention to death penalty issues after this legislative session ends.

When the death penalty does resume, Stitt said he’s committed to ensuring it’s done “swiftly, cleanly and humanely.”

Hunter’s spokesman Alex Gerszewski said earlier this month that the attorney general could speak while being driven to an appointment in Lawton mid-month. But the day before the interview Gerszewski emailed to say that “there isn’t anything new to report,” and asked to reschedule.

Allbaugh, through DOC spokesman Matt Elliott, said he didn’t “want to say anything beyond what we’ve (already) said.”

“If it makes you feel any better,” Elliott said in a later email, “we also turned down the New York Times.”

Dale Baich, one of the attorneys representing Oklahoma death row prisoners, has criticized Oklahoma’s intention to use nitrogen hypoxia as an execution method as “another experiment.”

In a recent interview with The Frontier, Baich said “no one really knows if nitrogen works.”

“It’s impossible to know if using nitrogen will work or even how it will work,” Baich said. “The state could guess based on these studies that it cited during the legislative hearings, but no one knows for sure, and that’s the issue.”

Baich said the state “cannot say that inmates (who are executed using nitrogen) didn’t suffer.”

“At least with lethal injection, we know that the paralytic drug was masking what was going on and we saw that in the Lockett case,” Baich said. “Because the (IV) lines were not properly inserted, Lockett was not paralyzed and the midazolam wore off and he was exhibiting signs of pain.”

With nitrogen inhalation, Baich said, the problem is the same — “It’s going to be another experiment,” he said.

“No one has done this before, so whatever the state comes up with obviously it’s going to be untried and no one will know or even can know how it is going to work or if it’s going to work.”

He also thinks 2020 might be too optimistic a projection for the resumption of executions.

“Practically speaking, when the protocol is made public, we have the opportunity to ask the federal court to review it and there would be litigation,” he said. “The state also committed to not asking for execution dates for fivetmonths after it makes the protocol available … it’s not like they can say ‘Here’s the protocol, ready, set, go.’”

Despite these difficulties, the process has not slowed in Tulsa County, where prosecutors are seeking the death penalty against six separate defendants.

• Derrick Wayne Stith, 25, accused of killing 21-year-old Kimberly Vo with a hammer, allegedly hitting her more than 50 times inside their apartment in 2017.
• Gerald Keith Lowe Jr., 40, and Michaela Riddle, 26, accused of killing 23-year-old Courtney Palmer in 2016, then taking his body to Muskogee and burning it.
• Jacky Mayfield, 30, who allegedly killed two people — 26-year-old Markey Goff and 31-year-old Meshawna Jones — after Mayfield was unable to steal prescription pills from them. Mayfield, who reportedly has an IQ in the 60s, is awaiting a mental disability hearing before possibly heading to trial.
• Keenon Sean Burkhalter, 23, accused of killing three people, including a 7-year-old girl, last October. Burkhalter allegedly killed Hosea Fletcher, Marquis Brown and Brown’s daughter, then set their residence on fire.
• Ondriel Layson Smith, 35, accused of shooting brothers Glynn and Keith Williams last September.

And there’s at least one case in Oklahoma County where prosecutors are seeking the death penalty (Oklahoma County District Attorney David Prater did not respond to requests for comment.) Victor Manuel Minjarez, 31, allegedly killed his 7-month-old son then left the body in a trash can.

Tulsa County District Attorney Steve Kunzweiler has often voiced his support for the death penalty, and told The Frontier last year in an interview that while he’s “pro-life,” he also believes there are circumstances in which “individuals present a risk to public safety.”

“As long as we have laws on that govern activities and potential punishments and it’s (the death penalty) still on the books, then that’s my job.”

Death penalty timeline
2014
April 29 – Clayton Darrell Lockett, 38, is executed. The execution was halted after a supposedly unconscious Lockett began speaking and writhing on the table. He died of a heart attack 43 minutes after the execution began. Charles Frederick Warner was set to be executed as well, but it was not carried out following the Lockett debacle.
Sept. 30 – After months of investigation and review, DOC releases its revised execution protocol. The protocol mirrors that of Arizona, where Director Robert Patton formerly worked.
Oct. 10 – DOC officials show off the renovated execution chamber at the Oklahoma State Penitentiary. More than $106,000 was spent on the renovation, most of which was spent updating the operations room and death chamber itself. So far it has been used only once.

2015
Jan. 15 – Charles Frederick Warner, 47, is executed. It is later learned that a wrong drug — potassium acetate rather than potassium chloride — was used in his execution.
April 14 – Nitrogen gas inhalation adopted by state Legislature as execution option.
Sept. 16 – The Oklahoma Court of Criminal Appeals stays the execution of Richard Glossip mere hours before he was scheduled to die by lethal injection. A new execution date is set for Sept. 30.
Sept. 30 – DOC officials realize they have again purchased potassium acetate instead potassium chloride as they prepare to execute Richard Glossip later that day. Glossip’s execution was halted.
Oct. 2 – Oklahoma Court of Criminal Appeals imposes indefinite stay on all executions.

2016
Nov. 8 – Despite state’s recent problems conduction executions, not to mention the court-mandated stay, Oklahoma voters elect to enshrine executions in the state’s constitution. The vote ensures capital punishment will be available even if higher courts later rule lethal injection unconstitutional.

2018
March 14 – Department of Corrections Director Joe Allbaugh announces DOC will use nitrogen gas as primary method of execution.

2019
March 13 – Oklahoma Attorney General Mike Hunter tells television station KFOR that the delay in finishing the state’s new death penalty protocol is due to difficulties in finding a device that will administer nitrogen gas, saying that manufacturers of such devices are wary of public blowback.

March 28 – Hunter tells attendees at an Oklahoma District Attorneys Council meeting that, unable to purchase the equipment needed to administer nitrogen in an execution, the state would instead look to build its own device.