The ‘Recipe for Failure’ That Led to Oklahoma’s Botched Execution

Secret suppliers of drugs, changes in lethal-injection protocol, a cavalier attitude among Oklahoma officials, and a national death-penalty system in crisis preceded Tuesday’s failed execution.

The 'death chamber' at the Texas Department of Criminal Justice Huntsville Unit in Huntsville, Texas, February 29, 2000. 
National Journal
April 30, 2014, 4:12 a.m.

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.

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