A battle of political wills over Oklahoma’s secretive lethal-injection protocol turned into a gruesome scene of macabre theater Tuesday evening, as the state botched the execution of one inmate and halted that of another scheduled later in the night.
The mishandling reflects the extraordinary and surreptitious lengths a handful of active death-penalty states are now willing to go to in order to continue their executions, capital-punishment opponents say, and represents just the latest episode in a string of disturbing events on Oklahoma’s death row in recent months.
Moreover, Oklahoma’s ongoing morass is a symptom of a national death-penalty system in crisis, a system that is finding it increasingly difficult to procure the drugs necessary to carry out death sentences amid boycotts from European manufacturers and reticence from licensed physicians.
At first, everything seemed to be going normally Tuesday night. Clayton Lockett was declared unconscious 10 minutes after being injected with the first dose of a new, untested three-drug cocktail, according to witness reports. But minutes later, he awoke and began breathing heavily, and, still strapped to the gurney, started writhing and muttering.
In a panic, Oklahoma Department of Corrections officials — who now dispute that Lockett ever regained consciousness — lowered the death chamber’s blinds to prevent people from seeing the rest. Lockett died of a heart attack 43 minutes after being administered a new and untested drug combination.
Death-penalty opponents are now calling for Oklahoma to suspend all of its executions for the rest of the year to avoid another botched job. Gov. Mary Fallin, a Republican, has so far issued only a 14-day stay for Charles Warner, who was also scheduled to be put to death Tuesday night in the same room as Lockett just two hours later.
“Apparently they can conduct their entire investigation in two weeks,” Madeline Cohen, Warner’s defense attorney, told National Journal sarcastically.
In Oklahoma, as well as other places such as Texas and Missouri, states have turned to compounding pharmacies — where products are chemically crafted to fit an individual person’s needs — to produce the lethal cocktails. But these stores, which are not subject to strict oversight by the Food and Drug Administration, don’t want to be publicly associated with executions. In response, states have granted them anonymity, and their identity remains a mystery even to the attorneys representing the death-row inmates.
Leading up to the execution, state officials repeatedly enforced Oklahoma’s supplier-secrecy laws that prompted a flurry of litigation and an unusual legal showdown pitting Gov. Fallin against her state’s Supreme Court.
A day after the court ruled last week 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 — 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 did an about-face. Following Fallin’s order, it decided to dissolve its own stay, reversing a lower-court ruling that found a law letting the state keep secret the source of its lethal drugs unconstitutional.
Death-penalty opponents accused state officials of succumbing to political pressure, and maintain that Oklahoma’s “veil of secrecy” calls into question the reliability and efficacy of its lethal cocktails. They also said Oklahoma’s actions could violate protections against cruel and unusual punishment.
“The only thing we knew about the drugs in this execution were the names of the drugs,” Cohen, Warner’s attorney, said. She also refuted claims from the Oklahoma Department of Corrections that Lockett’s execution failed because of a blown vein. “He was a very fit, strong guy with bulging veins. It’s just not remotely likely that that would have happened.”
The scramble to procure lethal cocktails has resulted in an alarming inconsistency in the way inmates are executed in the United States. The refusal of some states to disclose the process for selecting new drug bolsters critics who claim it and other states are willing to risk violating generally accepted standards of decency in their pursuit of a reliable method of execution.
“Every time a state changes their method of execution, they lose credibility about a procedure that should be as humane as we can make it. Everything that states are doing now goes against that very grain,” Deborah Denno, a capital-punishment expert who opposes the death penalty, told National Journal last year. “They choose drugs because they are available, not because they know anything about those drugs.”
Richard Dieter, the executive director of the Death Penalty Information Center, said that officials ignored warning signs in other states where untested, secretive combinations of drugs have been used recently. The specific combination of drugs in Lockett’s execution has only been used before in Florida, although the protocol there asked for five times the amount of midazolam, which acts as a sedative.
“The whole idea that you can just do whatever you want as long as you kill somebody was a recipe for a failure,” Dieter said. “If you work in a silo and think that you have it all covered, you’re going to make mistakes.”
Dieter said he expected Oklahoma to halt the rest of its executions for the rest of the year. But the state, which boasts the highest per-capita rate of execution in the country, has endured scandal before without changing course.
In January, the state put to death Michael Lee Wilson with a similarly secretive batch of untested drugs. His final words were, “My whole body is burning.”
Last month, newly published state records revealed that the state has injected already-dead convicts with lethal drugs for “disposal purposes” in an apparent effort to tamper with postmortem toxicology reports in a way to keep from public knowledge the amount of pain endured during execution.
Email exchanges among Oklahoma officials also found them joking about helping Texas obtain certain lethal drugs in exchange for college football tickets — or for the Texas Longhorns throwing games against the Oklahoma Sooners.
“Looks like they waited until the last minute and now need help from those they refused to help earlier,” a state official wrote in January 2011. “So, I propose we help if TX promises to take a dive in the OU-TX game for the next 4 years.”
Oklahoma’s plan to carry out two executions Tuesday would have marked the first time since Texas in 2000 that a state has put two inmates to death in the same day. Oklahoma had not done so since 1937.