OKLAHOMA CITY — A federal judge has rejected a request by Oklahoma death-row inmates to halt executions in the state, finding that the state’s protocol does not violate the Constitution’s ban on cruel and unusual punishment.
The ruling by U.S. District Judge Stephen Friot clears the way for four upcoming executions, though the plaintiffs are expected to take their case to the 10th Circuit Court of Appeals.
In making his ruling, Friot found that the plaintiffs, 21 death-row inmates, failed to prove that the state’s use of a new lethal drug, midazolam, presents a constitutionally unacceptable risk of pain and suffering during executions. That is the standard set up by the U.S. Supreme Court in a 2008 ruling upholding lethal injection.
Friot said the inmates failed to establish that the state’s revised protocol presents a risk that is “sure or very likely to cause illness or suffering.”
DOC Director Robert Patton said the state “will now proceed with the guidelines set forth in the policy and protocol in preparation for the upcoming executions.” Patton declined to answer questions after the ruling, citing ongoing litigation.
The inmates’ lawsuit asked Friot to rule that the April 29 execution of inmate Clayton Lockett was unconstitutional. Lockett began speaking and trying to rise up from the gurney after a doctor declared him unconscious. Witnesses watched him writhe and mumble for three minutes before blinds in the execution chamber were closed.
Patton ordered the execution halted, and Lockett died on the gurney 43 minutes after the process began while Gov. Mary Fallin was attempting to grant a stay, testimony indicated. Despite a policy calling for emergency measures in such situations, prison officials and the doctor took none.
Friot said he sensed that “the experience of the Lockett execution was, in some ways, repugnant to Warden (Anita) Trammell and she does not want a mishap like this to occur again.”
Friot’s ruling came after a three-day hearing last week in Oklahoma’s Western District of federal court.
Attorneys for the state maintained that midazolam has been found constitutional in Florida, where it has been used in 11 executions as the initial substance in a three-drug cocktail.
The state’s attorneys say those executions were without incident. However, plaintiffs’ attorneys noted that the second drug is a paralytic, which would prevent inmates from indicating they are in pain.
Midazolam was used in an Ohio execution that took 53 minutes and an Arizona execution that lasted nearly two hours.
Lockett was sentenced to death for the murder of 19-year-old Stephanie Neiman of Perry, who was shot and left for dead in a ditch by Lockett and two accomplices in 1999.
A second inmate who was scheduled to be executed on April 29, Charles Warner, is now set to die Jan. 15. Executions are also set for Richard Glossip on Jan. 29; John Marion Grant on Feb. 19; and Benjamin Cole on March 5.
Dale Baich, one of several attorneys who represented the plaintiffs, said in an email that the plaintiffs planned to appeal Friot’s ruling to the 10th Circuit.
“There are several reasons for serious concerns about Oklahoma’s ability to carry out executions that comply with the Eighth Amendment’s ban on cruel and unusual punishment,” Baich said.
“Our primary concern is the use of midazolam, a drug that is inappropriate for use in executions because it does not relieve pain and does not maintain prisoners at an adequate level of anesthesia.”
In making his findings of fact, Friot found credible the statements of witnesses who heard Lockett saying “something’s wrong” and “this sh— is f—ing with my mind.” The judge criticized the execution team’s failure to notice a large bulge near Lockett’s femoral IV, indicating the drugs were not going into his bloodstream.
An autopsy found that Lockett had levels of all three lethal drugs in his system, including potassium chloride. The Supreme Court has said it is “uncontested” that inmates would feel pain if they received the second and third drugs without being anesthetized by the initial drug.
“By all accounts potassium chloride will cause an individual extreme pain. … What is not clear by the evidence is the extent to which that occurred,” Friot said.
In making his ruling, Friot found the state’s new execution protocol, approved Sept. 30, to be “facially constitutional” when measured by the Supreme Court’s standard. He said the protocol requires two IV sites, confirmation of a viable IV site and monitoring of the offender throughout the process.
He noted that opposition to the death penalty had resulted in more reliable drugs, pentobarbital and sodium thiopental, being unavailable to Oklahoma and other states.
Friot also noted that the state has “a significant interest in meting out a sentence of death” on behalf of the victims.
“An injunction would not be in the public interest. … Only with real finality can the victims of crime move forward knowing that a sentence will be carried out,” Friot said.
Testimony during the three-day hearing pulled back the curtain on legal maneuvering and political pressure leading up to the April 29 execution.
A former DOC general counsel testified that political pressure played a key role in the rush to find a new execution drug.
“There were calls from the Governor’s Office,” said Michael Oakley, former general counsel for the DOC. “We would get word from the Attorney General’s Office that we better hurry up and do something.”
Midazolam was chosen in the five days after the state reported to the Court of Criminal Appeals on March 17 that it couldn’t obtain either of the drugs used previously to render inmates unconscious — pentobarbital and sodium thiopental. A revised execution policy allowing the use of midazolam was in place by March 21, Oakley confirmed in court.
Much of the testimony centered on documents and interviews that were part of the state’s official investigation into Lockett’s death, most of which have not been released to the public. Attorneys for the state have designated them confidential and have not complied with a request by the Tulsa World in September for copies under the Open Records Act. Large portions of some transcripts shown in court have been redacted.
The World and Reporters Committee for Freedom of the Press sued Fallin and DPS on Monday, alleging the state has not complied with the Open Records Act in continuing to withhold the transcripts as well as emails related to the execution.
Ziva Branstetter 918-581-8306
Cary Aspinwall 918-581-8477