The pathos and problems of America’s death penalty were vividly on display yesterday when Ohio tried and failed to execute Alva Campbell. Immediately after its failure Gov. John Kasich setJune 5, 2019, as a new execution date.
This plan for a second execution reveals a glaring inadequacy in the legal standards governing botched executions in the United States.
Campbell was tried and sentenced to die for murdering 18-year-old Charles Dials during a carjacking in 1997. After Campbell exhausted his legal appeals, he was denied clemency by the state parole board and the governor.
By the time the state got around to executing Campbell, he was far from the dangerous criminal of 20 years ago. As is the case with many of America’s death-row inmates, the passage of time had inflicted its own punishments.
The inmate Ohio strapped onto the gurney was a 69-year-old man afflicted with serious ailments, including lung cancer, COPD and respiratory failure. Campbell has had prostate cancer and a hip replacement. He needs daily oxygen treatments, uses a walker and is tethered to a colostomy bag.
Ohio officials were so aware of Campbell’s breathing problems that they provided a wedge-shaped pillow to raise his head, so he could breathe more easily as it set about to end his life.
Officials had been warned about the difficulty of finding a usable vein, and the Ohio Department of Rehabilitation and Correction had problems finding Campbell’s veins during a recent exam.
Nonetheless, the state went ahead with his execution.
On Wednesday, the execution team tried four different places in Campbell’s arms and right leg to insert the needle through which to administer lethal drugs. After 30 minutesit stopped the execution and returned Campbell to death row.
Stopping an execution before it is completed is quite unusual, even if serious problems occur during the procedure. Those serious problems are not rare: Approximately 3 percent of American executions were botched during the 20th century, and 7 percent of lethal injections have been botched since its first use in 1982.
The first of those was Louisiana’s botched electrocution of Willie Francis, in which the current of electricity was not sufficient to kill him.
The second time an execution was stopped in mid-course occurred in Ohio during the 2009 effort to put Romell Broom to death. The execution team could not find a usable vein. After two hours of repeatedly poking and stabbing Broom’s arms and legs, they gave up.
In April 2014, when Oklahoma tried to executeClayton Lockett, officials also had problems finding a usable vein. They finally inserted the needle into a vein in his groin. When the lethal drugs were administered, Lockett struggled violently: The needle had dislodged from the vein into a muscle. Ultimately the execution was stopped before Lockett was killed. Sometime later he died of a heart attack while still strapped to the gurney.
Lockett’s death was one of the more gruesome in America’s history of botched executions, but it spared the state an ethical and legal question that faced officials in the Francis and Broom cases, and now faces Ohio officials who failed to execute Campbell. What should be done with him?
Should the state, having failed in its first execution attempt, be able to try again? Are we well served when we force the condemned to undergo the psychological torture of having to prepare to die, only to have to relive the experience of execution a second time?
The courts bent over backward to permit a second execution in the Francis and Broom cases. In the former, the United States Supreme Court ruled that the state would only be barred from going through with a second execution if it had intentionally botched the first. Even if the state were careless or negligent in its first execution attempt, the court said, it could still proceed with another. The state of Louisiana went ahead and put Francis to death.
In March 2016, the Ohio Supreme Court rejected an appeal by Broom to stop his second execution. The court reaffirmed the Francis precedent and added that since the lethal chemicals had not begun to flow when his execution was halted, his “punishment” had not really begun. The United States Supreme Court refused to hear his appeal that a second execution would constitute double jeopardy and cruel and unusual punishment. Broom awaits his execution date on Ohio’s death row.
The fine legalisms of the Francis and Broom decisions give the state too much room for error in the serious business of putting someone to death. If the state is going to kill, it should have the burden of getting it right the first time. The law should allow no second chances.
I say this not out of sympathy for those whose heinous acts bring them to the death chamber, but because how a society punishes reveals its true character. Punishment tells us who we are.
When we punish cruelly we create “a class of punishers whose lives are wasted and their characters depraved so that as citizens they become almost as undesirable as the criminals they torture.”
Those are the words of a playwright, George Bernard Shaw, and, as Ohio considers what to do with Campbell, it should heed his warning. Ohio failed to execute Alva Campbell, despite all the warning signs of the risk of failure because of his weakened physical state. Now, Ohio’s citizens and public officials should be careful, lest in their eagerness to try a second time, they “become almost as undesirable” as the murderer they seek to execute.
The death penalty is often justified on the grounds that it brings peace to the families of victims; that the act of ending a life may mark an end to their pain. But for those who impose the death penalty, the truth about the emotional trauma of killing another human being belies this logic.
“You can’t tell me I can take the life of people and go home and be normal. If I had known what I’d have to go through as an executioner, I wouldn’t have done it. It took a lot out of me to do it.”
These are the words of Jerry Givens, former state executioner for the Virginia Department of Corrections. Givens executed 62 people over 17 years in a state that ranks third in the nation for number of executions. The emotional toll of his former job is something he can’t escape. “You have to transform yourself into that person that will take a life. Every time an execution was announced, it meant that I had to prepare myself mentally to kill.”
Confessions of an Executioner
It’s rare to find a former executioner willing to speak openly about their experiences. The nature of the job causes many to conceal their real occupation like a shameful secret. But Givens is one of the few executioners who speaks candidly about his past career, and he provides a unique insight into a world that few people ever venture into.
It’s clear from speaking to Givens that he is a compassionate man. He talks often of being able to look past the crime to see the human being underneath. “We degrade people and call them animals,” he told ThinkProgress. “But when I worked on death row, I didn’t see that animal. I saw a human being. When you call people an animal and treat them like that, that’s the behavior they’ll show you. But they can also show you that they’re not like that; that everybody can change.”
An executioner seems a curious job for a person to whom empathy comes easily. How did this compassionate man become an enforcer of the death penalty? What did it take for him to kill another human being? For Givens, it was a steadfast faith in the justice system. This faith meant that doubts were suppressed and fears were tolerated. Any gnawing unease was overpowered by the notion that it must be the right thing to do – it was state-certified, after all.
“I always ask myself, would I have agreed to participate in executions if I knew then what I do now?” Steve J. Martin, an execution witness for the Texas Department of Corrections, told ThinkProgress. “We do these things that we would normally never be involved in because they’re sanctioned by the government. And then we start walking through them in a mechanical fashion. We become detached. We lose our humanity.”
Givens agrees. “The people who pass these bills, they don’t have to do it. The people who do the executions, they’re the ones who suffer through it,” he said.
Deliberately killing another human being goes against all normal societal standards, and many individuals must go to unusual and harmful measures to accomplish such an act. A 2005 Stanford University psychology study by Michael Osofsky highlighted the tactics employed by prison staff to absolve themselves from feelings of guilt and despondency.
“Individuals must morally disengage in order to perform actions and behaviors that run opposite to individual values and personal moral standards,” Osofsky explained in the study. “Capital punishment is an example of this type of moral dilemma, where everyday people are forced to perform the legal and state-sanctioned action of ending the life of another human being, which poses an inherent moral conflict to human values.”
For many people involved in enforcing the death penalty, the subsequent trauma would never dissipate. California Governor Edmund Brown was responsible for deciding whether death sentences would ensue or be commuted to life without parole. Though he granted clemency to 23 out of his 59 cases, the weight of these decisions still overwhelms him.
“The longer I live, the larger loom those 59 decisions about justice and mercy that I had to make as governor,” Brown said. “It was an ultimate power over the lives of others that no person or government should have. And looking back over their names and files now, I realize that each decision took something out of me that nothing – not family or work or hope for the future – has ever been able to replace.”
Needless to say, the enforcers of the death penalty aren’t the only ones to suffer. Fully accepting the imminent end to your life, against your will and at the hands of another is a bizarre reality that many prisoners just couldn’t face, as Givens recounts.
“This one guy…was sort of moderately retarded. He’d ordered McDonald’s and a chocolate nut sundae for his last meal. But he couldn’t swallow it. So he said to me, ‘I can’t finish it so I’ll put it in the fridge for tomorrow.’ Here he is, three hours away for being executed and he’s thinking about putting his sundae away for tomorrow. But there was no tomorrow for him. He hadn’t realized this was his last day.”
Givens’ experiences in the death chamber have led him to campaign for the abolition of capital punishment, even driving him to write a book, Confessions of an Executioner. His motivation is deep-seated. “There are things I want the public to know that they don’t. I need to expose things that should be exposed. I don’t want to leave anyone in the dark, because America is still putting innocent people on death row. And people don’t know about it. People don’t understand.”
A Lethal Dose
The botched execution of Clayton Lockett in Oklahoma last year is one example of the realities of the death penalty, which Givens believes all people should know about. “He strained and struggled violently, his body twisting, his head reaching up from the gurney,” journalist Katie Fretland wrote. “Sixteen minutes after the execution began, Lockett said “Man,” and the blinds were lowered… It would be a full 43 minutes after the drug was administered before Lockett died – and only after he had thrashed on the gurney, writhing and groaning.”
Lockett was killed using a new combination of experimental drugs and the consequences were nightmarish. The doctor was sprayed with blood when an artery was hit; Lockett was in “some pain” as he was pricked at least 16 times in the attempts to find a vein; the scene was described by prison wardens as “a bloody mess” and the prisoner’s multiple attempts to talk like something from “a horror movie.”
The emotional repercussions of this blood-splattered scene were harrowing. Witnesses to the execution spoke of their distress and recounted not being able to sleep for days after. It is the quiet nature of lethal injections that is their selling point, after all –- state-sanctioned homicides veiled with a clinical serenity. As Givens knows all too well, no one wants to see actual blood spilled, or face the unwelcome reminder that, murderer or not, there is a human being dying in front of them.
After Europe blocked sales of the lethal drug sodium thiopental to the United States, the Department of Corrections were forced to look elsewhere for such a powerful anaesthetic. But global pharmaceutical companies didn’t like the idea of their drugs being used to kill people, and so drugs were sourced, purchased, but then again quickly blocked. Soon, the departments of corrections hit a wall. There were simply no anaesthetics strong enough.
But there were other drugs. Not anaesthetics, but sedatives like midazolam, usually administered in conjunction with an anaesthetic to relax a patient. Despite the warnings that midazolam is simply not powerful enough to produce the same coma-like state as sodium thiopental – a state absolutely necessary to ensure the subject feels no pain and the execution is ‘humane’ – midazolam became the drug of choice and the fatal experimentations began.
This unyielding desire to purchase and use barely-tested lethal drugs on prisoners doesn’t surprise Givens. “The criminal justice system is corrupted and we don’t want to own up to it. They think they can get any drugs they want. Where they got so much power from, I don’t know. The drugs should be disclosed to the lawyer and to the condemned – he should know what he’s going to die from.”
As many expected, the first midazolam executions were riddled with red flags. Pastor Laurence Hummer’s account of the execution of Dennis McGuire is just one of them: “His stomach swelled up in an unusual way. He struggled and gasped audibly for air. I was aghast. Over 11 minutes or more he was gasping for breath, his fists clenched the entire time. His gasps could be heard through the glass wall that separated us. There is no question in my mind that Dennis McGuire suffered greatly over many minutes. I consider that inhumane.”
Despite these reports, midazolam was recommended for use by the Oklahoma Department of Corrections, and correctional facilities across the country jumped aboard. Last week, despite significant condemnation the
<href=”#ixzz3edvb5k66″>Supreme Court rejected the idea that midazolam is a cruel and unusual punishment and sanctioned its use, clearing the way for deferred executions to ensue.
“The drugs they’re using, who approved it? What doctor approved it?” asks Givens. “You can’t judge pain. You can’t measure the pain that a person is going through, physical or psychological. The guy receiving the drug can’t tell you, because he’s gone. You’ve never died before, so you can’t say. Even myself, I don’t know. I can’t tell you what a guy on the other end is feeling when I’m pushing drugs into his body.”
The Baseline of Morality
The botched executions didn’t end in Oklahoma. Sentenced to death in Arizona for a 1989 double murder, in July 2014 Joseph Wood took two hours to die. Journalist Mauricio Marin had never witnessed an execution before; prison staff had told him the process “lasts about 10 minutes” and would be “very clinical”. Instead:
“I saw a man who was supposed to be dead, coughing – or choking, possibly even gasping for air. What seemed like an eternity passed… Finally, the warden pronounced the killer dead, at 3:49 pm, one hour and 57 minutes after the execution began. I thought: Is this how long it’s supposed to take a man to die?”
Republican Senator John McCain was outspoken in terming Wood’s protracted execution as“torture”, but the governor of Arizona Jan Brewer disagreed. “Wood died in a lawful manner and by eyewitness and medical accounts he did not suffer,” she said. “This is in stark comparison to the gruesome, vicious suffering that he inflicted on his two victims.”
The argument that a convict’s crime was so heinous that it negates any qualms about their execution is popular with death penalty supporters. The incongruity of using the actions of a convicted killer to determine the baseline for what’s morally acceptable is not lost on Givens, who views this as a dire expression of our most base and ugly thirst for revenge.
“It is revenge – you can’t put it any other way,” he said. “We want revenge and we want it right away. Death is going to occur anyway, but we’re so impatient we have to execute someone. That’s the mentality people have. America was built on killing and there’s hatred in our hearts. But it shouldn’t be that way.”
While most supporters of the death penalty refute the idea that it’s about revenge, District Attorney Dale Cox -– responsible for one third of the death sentences in Louisiana since 2011 -– readily agrees. “I’m a believer that the death penalty serves society’s interest in revenge. I know it’s a hard word to say and people run from it, but I don’t run from it because I think there is a very strong societal interest,” Cox recently told a local reporter. “I think we need to kill more people.”
A death sentence is also no quick way to closure, as Bill and Denise Richard, parents of the 8-year-old boy killed in the Boston Marathon bombings took pains to point out. Publishing a personal appeal in the Boston Globe titled ‘To end the anguish, drop the death penalty,’ the Richards implored prosecutors to sentence Dzhokhar Tsaernev to life without parole instead of death.
“The continued pursuit of that punishment could bring years of appeals and prolong reliving the most painful day of our lives,” they wrote. “We hope our two remaining children do not have to grow up with the lingering, painful reminder of what the defendant took from them, which years of appeals would undoubtedly bring.”
The Richards are not alone. Marietta Jaeger, whose seven-year-old daughter was kidnapped and murdered by a mentally ill man, requested that prosecutors seek a mandatory life sentence instead of the death penalty. Jaeger has been vocal in her opposition to capital punishment,asserting that in reality, the death penalty only creates more grieving families and turns the victims into that which they deplore – people who kill people:
“To say that the death of another person would be just retribution is to insult the immeasurable worth of our loved ones. That kind of justice would only dehumanize and degrade us because it legitimates an animal instinct for gut-level, blood-thirsty revenge. My daughter was such a gift that to kill someone in her name would have been to violate the goodness of her life; the idea is offensive and repulsive to me.”
Givens recalled the case of Earl Washington Jr., a 22-year-old black man wrongfully convicted of rape and murder, as one example that made him lose faith in the justice system. Washington’s execution was stayed nine days before Givens was scheduled to kill him. Years later, new DNA evidence led Virginia’s governor to pardon Washington, who was released in 2001.
“I knew the system was corrupted when we exonerated Earl Washington Jr. from death row. Days later, I would have executed him,” Givens said. “You have two types of people on death row: the guilty and the innocent. And when you have the guilty and the innocent, you shouldn’t have death row.”
But even if the law has not yet caught up, attitudes are starting to change on the death penalty. Support for the death penalty is at historic lows, and abolitionists remain optimistic even after the most recent Supreme Court ruling.
“We have to look at the big picture,” Givens explained. “Everyone on Earth has a death day: you, me, everyone. We can’t stop death, but we can stop killing…We have to think about the generation that’s coming up. We can’t let them go through what we had to go through. We tried it; we tried it, and it didn’t work. Now let’s get them going in a different direction from us.”
OKLAHOMA CITY (Reuters) – An Oklahoma court on Wednesday set execution dates for three inmates who lost a battle to have the U.S. Supreme Court put their capital punishment on hold because of problems they claimed with the state’s lethal injection mix.
The Oklahoma Court of Criminal Appeals set Sept. 16 for the execution of Richard Glossip, Oct. 7 for Benjamin Cole and Oct. 28 for John Grant, a court clerk said.
Glossip arranged for his employer to be beaten to death. Cole killed his 9-month-old daughter. Grant stabbed a correctional worker to death.
The attorney general had asked the court to resume executions as soon as August.
The state suspended all executions after the troubled April 2014 lethal injection of convicted murderer Clayton Lockett.
He could be seen twisting on the gurney after death chamber staff failed to place the intravenous line properly. The execution was called off but he died about 45 minutes after it started because of lethal injection chemicals that had accumulated in his tissue.
Lawyers for the three inmates facing execution argued that a drug in the state’s lethal injection mix, a sedative named midazolam, cannot achieve the level of unconsciousness required for surgery, making it unsuitable for executions.
On June 29, the Supreme Court found the drug did not violate the U.S. Constitution’s ban on cruel and unusual punishment, a ruling that provoked a caustic debate among the justices about the death penalty in America.
Florida, which has used the drug in 11 lethal injections, had placed a hold on executions while the case was before the court. It plans to resume executions soon.
The drug is also used in Ohio and Arizona, which do not have any executions currently planned for the rest of the year, according to the Death Penalty Information Center, which monitors U.S. capital punishment.
CNN) — Clayton Lockett and Charles Warner’s executions are back on the schedule for next week after Oklahoma’s high court lifted their stays, saying they had no right to know the source of the drugs that will be used to kill them.
The inmates, who are being held at the Oklahoma State Penitentiary in McAlester, where they are slated to be executed by lethal injection Tuesday, had challenged the state’s so-called secrecy provision, which forbids disclosing the identities of anyone involved in the execution process or suppliers of any drugs or medical equipment.
Lockett and Warner also challenged the state Department of Corrections’ failure to divulge which drugs would be used, but the department disclosed what drugs it intended to use before the high court’s decision: midazolam, which causes unconsciousness, along with pancuronium bromide and potassium chloride, which shut down breathing and the heart.
The Oklahoma Supreme Court said the only remaining issue, then, is whether the state’s failure to disclose its source for the drugs prevents the prisoners from challenging their executions using the Eighth Amendment’s prohibition on cruel and unusual punishment. The court decided it did not.
“This court holds that the secrecy provision … does not violate the inmates’ constitutional right of access to the courts,” the Wednesday ruling said.
Attorney Seth Day, who represents both men, called the ruling unacceptable and told CNN affiliate KFOR that there was no way to know if the prisoners’ executions “would be carried out in a constitutional and humane manner.”
“It’s not even known whether the lethal injection drugs to be used were obtained legally, and nothing is known about their source, purity, or efficacy, among other questions,” he told the station. “Oklahoma’s extreme secrecy surrounding lethal injection undermines our courts and democracy.”
Attorney General Scott Pruitt applauded the decision, saying the state had a longstanding precedent of keeping the drug sources secret to avoid “schemes and intimidation used by defense counsel and other anti-death-penalty groups.”
“These death row inmates have not contested their guilt for murdering two innocent victims nor have they contested their sentences of death. The legal wrangling of the attorneys for Lockett and Warner has served only to delay their punishment for the heinous crimes they committed,” he told KFOR.
Lockett was convicted in 2000 of a bevy of crimes, including first-degree murder, first-degree rape, kidnapping and robbery in a 1999 home invasion and crime spree that left Stephanie Nieman dead and two people injured. In 2003, Warner was convicted for the 1997 first-degree rape and murder of his then-girlfriend’s 11-month-old daughter, Adrianna Waller.
The constitutionality of lethal injection drugs and drug cocktails has made headlines since last year, when European manufacturers — including Denmark-based Lundbeck, which manufactures pentobarbital — banned U.S. prisons from using their drugs in executions. Thirty-two states were left to find new drug protocols.
“The states are scrambling to find the drugs,” Richard Dieter, executive director of the Washington-based Death Penalty Information Center, said in November. “They want to carry out these executions that they have scheduled, but they don’t have the drugs and they’re changing and trying new procedures never used before in the history of executions.”
If Lockett and Warner are executed next week, they would be the 194th and 195th inmates Oklahoma has executed since 1915.
A day after the Oklahoma supreme court issued a stay of execution for two convicted killers, the governor issued her own order on Tuesday that the state would carry out their sentences next week, setting up a possible legal confrontation over constitutional powers.
Republican governor Mary Fallin said the state supreme court acted “outside the constitutional authority” of its mandate in staying Clayton Lockett’s execution. She granted a stay of seven days for Lockett, escheduling his execution for 29 April, the same day condemned inmate Charles Warner is scheduled to be executed. But legal experts said the supreme court’s stays must be followed and the governor lacks the power to reset the date.
“Governor Fallin is a politician, and not a lawyer,” said Randall Coyne, a constitutional law expert at the University of Oklahoma. “According to well established precedent of the US supreme court, the courts – not executive officials – have the final word on what is constitutional. She of course has the right to disagree with judicial decisions, but they remain the law. The governor is dangerously close to precipitating a constitutional crisis.”
The day before Lockett’s planned execution, the Oklahoma supreme court on Monday indefinitely delayed his and Warner’s executions while they challenge the constitutionality of a law that keeps secret the source of the state’s execution drugs. The state’s highest court stepped in after two weeks of legal tussles in which it and the court of criminal appeals both said they did not have the authority to grant a stay.
On Tuesday, the office of the attorney general, Scott Pruitt, asked the state supreme court to rehear the case, arguing the court had caused chaos for the bifurcated appeals system of the state. The supreme court denied that petition 6 to 3 on Tuesday, essentially rejecting Pruitt’s questioning of the court’s jurisdiction.
Fallin then stepped in with an executive order, telling Pruitt’s office to file papers with the Oklahoma court of criminal appeals that would give her a blueprint as to how to implement the execution order.
And separately, the Associated Press reported that a member of the Oklahoma House drafted a resolution on Wednesday seeking the impeachment of state supreme court justices who granted the delay.
Republican state representative Mike Christian told The Associated Press that the five justices engaged in a “willful neglect of duty” when they granted stays of execution. An impeachment effort would have no impact on the current proceedings
“This is a case of our state’s judges inserting their personal biases and political opinions into the equation,” Christian told the Associated Press.
Eric M Freedman, a constitutional law expert at Hofstra University, said Fallin’s order is “pure political posturing”.
“The probability that the state will succeed in carrying out the executions in defiance of the stays entered by the Oklahoma supreme court hovers between zilch and zero,” he said.
Lockett and Warner challenged the constitutionality of an Oklahoma law that keeps the source of execution drugs secret. An Oklahoma county district court judge ruled in their favor in March, and judge Patricia Parrish said the statute violated their right to due process. Lawyers for Lockett and Warner say it would be “unthinkable” to carry out the executions while that challenge is unresolved.
Oklahoma attorney Stephen Jones, a Republican who served as counsel to Republican governors, said Tuesday’s developments were about politics, and Fallin has made a power grab of the state judiciary.
“It gives them something to campaign upon,” Jones said.
He said executing the men despite the court’s stay would create a “nasty confrontation” that the governor and attorney general would legally lose.
“She should have stayed out of it and let the courts work it out. She doesn’t really have a dog in the fight. Frankly I think it’s a sign of weakness on the part of the attorney general that he got the governor to do that. Scott Pruitt has not practiced much as a lawyer,” Jones added.
Brady R Henderson, legal director of the American Civil Liberties Union of Oklahoma, said the governor can delay an execution, but her resetting of the execution date is unlikely to hold up legally.
“The Oklahoma constitution simply does not give her the power to do that,” Henderson said.
“It is important to remember that the entire matter comes from a relatively simple request from two condemned men to find out about the drugs that would be used to kill them,” he said. “There are serious concerns about the conduct of the lethal injection process, and an Oklahoma law attempts to bar the inmates and everybody else from finding out important information about the process. In other words, it puts a veil of secrecy over one of the most grave functions of state government – killing its own citizens.”
One day before Clayton Lockett was scheduled to be executed for the 1999 shooting death of 19-year-old Stephanie Nieman, a sharply divided Oklahoma Supreme Court granted a stay.
The decision also includes a second inmate, Charles Warner, who was convicted in the 1997 death of his roommate’s 11-month-old daughter.
He was scheduled to die on April 29.
The two death row inmates have challenged the secrecy surrounding the source of the state’s lethal injection drugs.
The decision was 5-4.
Last month, Oklahoma County District Judge Patricia Parrish struck down the state’s execution law.
The ruling said the protocol prevented the inmates from seeking information about the drugs used in lethal injections and that violated their rights under the state constitution.
The state changed its execution protocol on March 21 to allow five different potential drug combinations for execution by lethal injection.
The state informed lawyers for the inmates on April 1 that the inmates would be executed using a combination of midazolam, pancuronium bromide and potassium chloride never before used in the state.
Executions have been conducted using the drug combination in Florida with lower doses.
The request filed by the convicts attorney says the inmates “have received no certifications, testing data, medical opinions or other evidence to support the state’s insistence that these drugs are safe, or to prove that they were acquired legally.”
Oklahoma and other states that have the death penalty have been scrambling for substitute drugs or new sources for drugs for lethal injections after major drug companies — many based in Europe with longtime opposition to the death penalty — stopped selling to prisons and corrections departments.
On Friday, the Oklahoma Court of Criminal Appeals denied the inmates’ request for a stay in spite of a ruling by the Supreme Court earlier in the week that the appeals court had the authority
Execution of Clayton Lockett to go ahead after judges in disagreement over which court has the power to grant a stay
Oklahoma plans to kill Clayton Lockett by lethal injection on Tuesday, after judges could not agree which court has the authority to stay his execution amid questions over the constitutionality of the state’s capital punishment law.
The Oklahoma court of criminal appeals and the state supreme court last week both declined to stay the executions of Lockett and Charles Warner, scheduled for April 29, with each court saying it did not have the authority to grant a stay.
The inmates have sued over the constitutionality of Oklahoma’s secrecy about execution drugs, and an Oklahoma county district court judge has ruled that keeping the source of the drugs confidential is a violation of their rights. The state is defending a law that allows it to keep the source of the drugs secret, on the argument that suppliers would be in danger if their identities were made public.
Lockett, 38, was convicted of killing a 19-year-old woman in 1999. He was also convicted of rape. Warner, 46, was convicted of raping and killing an 11-month-old baby in 1997.
The Oklahoma county district judge ruled in March that the secrecy surrounding the drug source violated the inmates’ right to access the courts. The state appealed that ruling on Friday to the state supreme court calling the ruling an “overbroad interpretation” of the right to access.
The inmates’ lawyers, Susanna Gattoni and Seth Day, said in a statement it would be “unthinkable” to execute them before the state supreme court considers the constitutional issues.
“The extreme secrecy surrounding lethal injection in Oklahoma makes it impossible to know whether executions would be carried out in a humane and legal manner,” the lawyers said. The lawyers appealed again Monday to the state supreme court.
The state has said Lockett and Warner will die, and that the question is how and when.
“The citizens should not see their criminal justice system derailed and subverted by criminal defendants who have completely exhausted the entire range of appeals and processes required by the US and Oklahoma constitutions due to baseless speculation of theoretical harms raised in improper venues,” the state said in a filing.
The state supreme court said it did not have the authority to stay the executions and transferred the matter to the criminal appeals court. But the criminal appeals court said it did not have the authority to grant a stay.
In transferring the case to the criminal appeals court, the state supreme court urged the judges to consider the “gravity of the first impression constitutional issues this court will be charged with in addressing” the appeals.
The appeals present claims, “which if resolved in the prisoners’ favor, might well support alterations in the execution process,” the court said in transferring the stay.
At the criminal appeals court, judge Clancy Smith dissented from her colleagues, saying: “I would grant a stay to avoid irreparable harm as the appellants face imminent execution. I would do so in consideration of the appellants’ rights, to avoid the possibility of a miscarriage of justice, and in comity with the supreme courts’ request for time to resolve the issues pending before it.”
The state plans to use an untried dose of midazolam in a three-drug lethal injection method to kill Lockett and Warner.
Unable to find the drugs it needed to kill the men, the state changed its protocol in March to allow five lethal injection methods. The state can use four three-drug combinations, or a single dose of pentobarbital.
The state has typically fought legal battles when it wanted to revise the lethal injection method, according to a document the corrections department wrote to update the state board of corrections in 2012.
“As noted, Oklahoma has been required to litigate every change in the lethal injection protocol and anticipates future litigation for each new change,” the document states.
Lockett’s execution is scheduled for 6pm local time on Tuesday, at the Oklahoma state penitentiary in McAlester. His will be the state’s third execution in 2014.
Clayton Lockett and Charles Warner have sued the state seeking more information about the drugs that would be used to kill them.
The Oklahoma Supreme Court says it is not the place for death-row inmates to go if they want a stay of execution.
Justices said Thursday that the Oklahoma Court of Criminal Appeals should take up stay requests from 2 inmates scheduled to die in the next 2 weeks. The appeals court had said previously it didn’t have the authority because the inmates hadn’t met all technical requirements under the law.
Clayton Lockett and Charles Warner have sued the state seeking more information about the drugs that would be used to kill them. They say they need stays of execution so they can continue their challenge.
The justices wrote that the Court of Criminal Appeals erred in not taking up the request.
Death penalty abolitionists and others who seek to end the death penalty will protest the executions of two death-row inmates on the days of their executions.
The Oklahoma Coalition to Abolish the Death Penalty will host “Don’t Kill for Me” demonstrations at the governor’s mansion followed by silent vigils on Tuesday for death-row inmate Clayton Lockett and on April 29 for Charles Warner.
The inmates have been in a legal battle with the state over the secrecy surrounding which drugs are used in executions and their origins. The executions are still scheduled to take place, despite pending litigation in the case.
Lockett was found guilty of the 1999 shooting death of a 19-year-old woman, Stephanie Nieman. Warner was convicted for the 1997 death of his roommate’s 11-month-old daughter.
Oklahoma officials on Friday said the state had obtained manufactured pharmaceuticals from a secret supplier for use in the executions of two men later this month, avoiding concerns over the use of compounded drugs but leaving unanswered questions about how it obtained them.
In a letter to defence lawyers, an assistant attorney general, John Hadden, said the state “has recently acquired a manufactured source of vecuronium bromide. That means there will be no compounded drugs used in the executions of your clients. This will resolve the concerns you and your clients have expressed regarding compounded drugs.”
Despite a judge’s ruling that a state drug secrecy law violated the inmates’ constitutional rights, Hadden declined to identify the supplier of the new drugs.
“This information is irrelevant to your clients and disclosure could lead to harassment or intimidation which will have a chilling effect on the state’s ability to acquire these drugs for future executions,” Hadden wrote.
Oklahoma plans to execute Clayton Lockett on 22 April and Charles Warner on 29 April. Both were convicted of murder and rape.
The state said on Friday it would use midazolam, vecuronium bromide and potassium chloride to kill the men, with dosages untried in US executions. Florida uses the same combination of drugs, but employs a dosage of midazolam, which acts as a sedative, that is five times larger than what Oklahoma plans to use. Vecuronium bromide is a paralytic agent; potassium chloride stops the heart.
Oklahoma had planned to use a different drug – compounded pancuronium bromide – as the second drug in the method, but lawyers objected to the use of loosely regulated compounded drugs that may lack purity and cause an unconstitutionally cruel death.
Hadden said the state will now use drugs that are approved by the Food and Drug Administration.
Madeline Cohen, a lawyer for one of the men due to be executed, said the state needs to reveal details beyond that the pharmaceuticals were manufactured rather than compounded.
“If they disclosed that the drugs were manufactured by a specific company, in a particular lot, and imported with this licence, for example, we would have some ability to evaluate that,” she said.
“Without that, we don’t know if it’s actually an FDA-approved drug or if it has been imported or sold legally, or if it is what the state says it is.”
She said there is no FDA-approved midazolam that comes in the concentration specified in Oklahoma’s lethal injection protocol, and the state has not said if it will dilute the drug to make the concentration.
The state could change the concentrations in the protocol, if any numbers were incorrectly written, Hadden said in his letter.