Oklahoma will carry out two executions just hours apart Tuesday evening, marking the first time since Texas in 2000 that a state has put two death-row inmates to death in the same day.
The executions of Clayton Lockett and Charles Warner, which will go forward barring any extraordinary legal intervention, will also put an end — for now — to a “constitutional crisis” in Oklahoma that found the Republican governor and state Supreme Court locked in an unprecedented legal showdown concerning the secrecy of its supply of lethal-injection drugs.
The carousel of heated back-and-forth litigation culminated last week with dueling orders from Gov. Mary Fallin and the Oklahoma Supreme Court. A day after the court ruled to stay the executions indefinitely, Fallin issued a temporary, seven-day stay on Lockett’s execution, which had been scheduled for April 22. Fallin’s order, which was a de facto override of the court’s decision, drew scrutiny from legal experts, prompting some to declare the state was mired in a constitutional crisis.
But the court quickly balked, choosing instead to nullify its own stay and reverse a lower-court ruling that found a law allowing the state to keep secret the source of its lethal drugs unconstitutional. Death-penalty opponents have accused state officials of succumbing to political pressure.
Oklahoma’s morass reflects a growing challenge states are facing nationally to carry out their death sentences because of lethal-drug shortages. As European manufacturers make it increasingly difficult for states to procure chemicals intended for lethal injections, states are being forced to look elsewhere to procure the necessary ingredients. In Oklahoma, as well as other states such as Texas and Missouri, states have turned to secret compounding pharmacies to produce the lethal cocktails.
Opponents of the death penalty say such secrecy violates a prisoner’s right to know how he will die and could undermine Eighth Amendment protections against cruel and unusual punishment.
“We don’t know where the drugs are coming from,” Cheryl Pilate, a Missouri attorney who has represented inmates challenging that state’s drug secrecy, said earlier this month. “They could be coming from a veterinarian, some dark corner of the Internet, or someone working in their basement.”
Because of those procurement challenges, Oklahoma is set to use a three-drug cocktail Tuesday evening on Lockett and Warner that has never before been used by the state. The specific combination of drugs has only been used before in Florida, although the protocol there asked for five times the amount of midazolam, which acts as a sedative.
Oklahoma changed its execution protocol last month to allow its Department of Corrections to use any of five lethal-injection procedures. The state has refused to disclose the manufacturers of those lethal drugs, citing a 2011 supplier-secrecy law officials say is necessary to persuade companies, under the cloak of anonymity, to provide them lethal drugs.
Oklahoma’s double execution Tuesday will be the state’s first since 1937.