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
Dustin Volz
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Dustin Volz
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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