The state is not backing down from using a controversial execution drug, and its new protocol for who can view executions cuts the number of media witnesses by more than half.
A new policy released Tuesday by the Oklahoma Department of Corrections outlines changes in the state’s death-penalty protocol in response to the botched April 29 execution of Clayton Lockett.
The policy includes four possible drug combinations, including the three-part cocktail used on Lockett. Two of Oklahoma’s options under the updated policy use the sedative midazolam, controversial for its role in lengthy executions in other states.
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However, Oklahoma’s new policy increases the amount of midazolam to be used from 100 milligrams to 500 milligrams.
Attorney General Scott Pruitt’s office had claimed in previous court filings that the lower amount used on Lockett was sufficient to render an inmate unconscious. Some experts interviewed by the Tulsa World have said the drug is not a true anesthetic.
Only one of the new drug combinations contains potassium chloride, a drug used to stop the heart. In a key ruling upholding lethal injection, the Supreme Court said states take an “unacceptable risk” of cruel and unusual punishment if an inmate receives potassium chloride while conscious.
The DOC’s previous policy included potassium chloride in four out of five drug combinations.
DOC Director Robert Patton will be in charge of choosing the drug combination used by the state, notifying the condemned inmate of his decision 10 days in advance of an execution. The previous policy placed the warden of the Oklahoma State Penitentiary in charge of choosing drugs and other aspects of the process.
For the first time, the state’s policy also provides for a set of backup drugs in case something goes wrong. An investigative report into what went wrong in Lockett’s case cited this as a major flaw of the DOC’s previous policy.
The number of media witnesses was cut in the policy from 12 to five because “the room is smaller now,” said DOC spokeswoman Terri Watkins. Reducing the number of media witnesses was not a recommendation of the state’s investigation, but the execution chamber, operations room and viewing areas were remodeled in the wake of Lockett’s execution.
Patton described the renovation as adding space, improving lighting and making room for new medical equipment.
The new protocol states that the death penalty procedure “accommodates the public’s right to obtain certain information concerning the execution” while also “reasonably addresses the privacy interests as provided by law.”
However, groups including the ACLU of Oklahoma criticized the move to reduce the number of journalists who can witness executions. The ACLU is a plaintiff in a lawsuit over the DOC’s decision to close a window blind during Lockett’s execution, preventing witnesses from seeing what happened.
“I don’t think that the solution ought to involve removing witnesses that serve an important public function. That’s consistent with … wanting to be secretive,” said Brady Henderson, legal director for the ACLU of Oklahoma.
Federal Public Defender Dale Baich, who represents death-row inmates suing the state, said the new protocol “does not fix the underlying problem.”
“We still do not know what went wrong with Mr. Lockett’s execution, and discovery and fact finding in the federal courts will address those issues,” he said.
Baich said he is also concerned about the state’s continued policy of keeping the source of its drugs and information about the execution team secret. He said he and other attorneys will be examining the new protocol closely, adding that “we are prepared to go forward with the litigation.”
Witnesses at Lockett’s execution described him as mumbling, grimacing and writhing on the gurney after he had been declared unconscious from a combination of drugs Oklahoma had never before used.
He died about 10 minutes after Patton technically stopped the execution as Gov. Mary Fallin was preparing to issue a stay.
Lockett was on death row for the 1999 murder of Stephanie Neiman, who was kidnapped and assaulted along with two friends and a baby. Lockett shot her and ordered his accomplices to bury her while she was still breathing.
The state’s investigation into his death cited problems with the IV that was supposed to deliver the lethal drugs as “the single greatest factor” behind problems during the 43-minute execution. There was also no backup plan in case things went wrong, the report stated.
Under the new protocol, there will be an IV insertion team that will include at least one doctor, physician’s assistant, nurse, emergency medical technician, paramedic or military corpsman (or other certified or licensed personnel, including those with U.S. military training).
After one hour of unsuccessful IV attempts, the director “shall contact the governor or designee to advise of the status and potentially request a postponement of the execution.”
The doctor and paramedic overseeing Lockett’s lethal injection attempted more than a dozen times to start an IV, ending up with a femoral vein IV that ultimately failed.
The lethal injection drugs — midazolam, vecuronium bromide and potassium chloride — had begun to form a golfball-sized pool of fluid in his tissue instead of flowing into his bloodstream.
Patton said he was unaware of several problems until after the execution, including that the doctor and paramedic overseeing the execution did not have the proper size needles for a femoral IV or an ultrasound machine to aid them and that only one vein was used. At future executions, he plans to be in the execution chamber whenever possible, he said.
The state’s report cited communication problems among the execution team, officials on site and the Governor’s Office as contributing to difficulties that night.
Another policy change in the protocol increases the amount of money the state will spend on an offender’s last meal. The updated policy allows the state to spend up to $25 instead of a total of $15 on the meal.
In a related development earlier Tuesday, U.S. District Judge Stephen Friot issued an order refusing to dismiss seven members of the state Board of Corrections, three unnamed executioners and other defendants from a lawsuit challenging the state’s death-penalty process.
Friot is overseeing the lawsuit filed by 21 death-row inmates following Lockett’s execution.
In his ruling, Friot refused to dismiss board members Kevin Gross, Michael Roach, Steve Burrage, Gene Haynes, Frazier Henke, Linda Neal and Earnest Ware.
Friot warned the state in a recent hearing that he likely would issue an injunction halting three upcoming executions if the state did not seek such an injunction on its own. He said he did not think the DOC had time to implement the new protocols and train employees before the next scheduled execution date, Nov. 13.
The plaintiffs who filed the suit include three inmates with upcoming execution dates. Charles Warner’s execution is set for Nov. 13, followed by the scheduled executions of Richard Glossip on Nov. 20 and John Grant on Dec. 4.
Warner is set to be executed for the 1997 rape and murder of an 11-month-old girl in Oklahoma City. His execution was originally scheduled to be held two hours after Lockett’s but was postponed.
Glossip is set to die Nov. 20 for his role in the 1997 death of Barry Van Treese, who owned the Best Budget Inn in Oklahoma City, where Glossip worked.
Grant was sentenced to die for the 1998 murder of Gay Carter, a food service supervisor at the Dick Connor Correctional Center in Hominy, where he was serving time for a prior conviction.
