Secrecy in Lethal Injection: How the Oklahoma Courts are Supporting a Deadly Double Standard

JURIST Guest Columnist Kimberly Newberry, Harvard Law School Class of 2014, clarifies the current policy surrounding lethal injection law in Oklahoma and explores the repercussions of such a policy...

On April 29, 2014, the State of Oklahoma forced Clayton Lockett to have a heart attack during a botched lethal injection. At least, that is the information that has been released to the public. Lockett and his attorneys had a lot of questions prior to his execution. They knew the date and that the State would inject him with a cocktail of lethal drugs, but the rest of the details were shrouded in a veil of secrecy — secrecy that the Oklahoma Supreme Court had decided earlier in the week does not violate Lockett's constitutional right to access the courts.

How Lethal Injection Works

To understand death row prisoners' desire to have details of their proposed executions heard by the courts, it is important to know how states usually conduct lethal injection and why it has the potential to be unconstitutionally inhumane. Historically, most states used a three-drug cocktail: pentobarbital or sodium thiopental, barbiturates that put a person to sleep so they are unable to feel anything else; pancuronium bromide, a paralytic to stop muscular movement and prevent respiration; and potassium chloride, which stops the heart.

Many opponents to this cocktail concede that if the first drug is properly administered, there is little to no likelihood that the extreme pain associated with the second and third drugs is felt. The problem, however, has been the insufficient guarantee of proper administration: faulty IV lines; the inexperience of the execution team members, who oftentimes do not have medical degrees; and questions surrounding the sources and purity of the drugs all lead to the possibility that the first drug will not work and the prisoner will feel everything else that happens. When the individual begins to experience pain, the second drug — a paralytic — will have already kicked in, making he or she unable to signal to anyone watching what is happening. By the time the executioners administer the third drug, the person will experience immense pain and feelings of suffocation or drowning. But nobody will know.

The State of Current Lethal Injection Law

Following numerous executions with signs that someone was conscious throughout the execution, lawyers representing clients on death row filed claims that lethal injection is a violation of the Eighth Amendment. Today's lethal injection law is largely shaped by Baze v. Rees, a US Supreme Court case in 2008 that reviewed Kentucky's lethal injection protocol. In a severely fractured opinion, a plurality for the court provided that for lethal injection to violate the Eighth Amendment's protection against cruel and unusual punishment, there must be a risk of pain that is "sure or very likely to cause serious illness and needless suffering and give rise to sufficiently imminent dangers." The plurality found Kentucky's lethal injection protocol and any that are "substantially similar" constitutional.

A torrent of cases across the country arose to determine whether each protocol fell within what is often referred to as Baze's safe harbor (safe for those implementing lethal injection, not for those being executed, of course). Despite a variety of differences in these protocols, most of them were either deemed facially similar and thus constitutional, or prison officials made oral representations to the courts that they could make amendments to any troubling provisions. A large part of the Baze decision, and the lower courts' review of state protocols, has been the speculative nature of many lethal injection claims. Plaintiffs in these suits are able to show what problems have already occurred in past executions, but Baze was clear that one accident or mistake does not lead to a constitutional violation. Many courts refused to find a "sure or very likely" risk in what might go wrong, even when looking at past experience. But as American lawyers needed to figure out a new approach, the fight continued overseas.

The Drug Shortage

In 2010, Reprieve, an organization based in London that seeks abolition of the death penalty, launched a campaign aimed at encouraging pharmaceutical companies in the United Kingdom to stop supplying lethal drugs to American prisons. The United Kingdom no longer has the death penalty, so once Reprieve publicly revealed which companies were involved in US executions, the companies quickly changed their practices. Many of them stressed the fact that they were in the business of developing medicines to improve and even save lives, not to end them. They stopped selling their drugs to prisons or placed strict guidelines on buyers not to use them in executions. Soon, the source for sodium thiopental and pentobarbital was completely stymied. This resulted in a mass shortage all across the US. The prisons had a limited supply of their barbiturates left, and those they had bore imminent expiration dates.

When the prisons still had drugs, though, questions arose surrounding where they came from. Allegations that the prisons were circumventing FDA requirements surfaced and in 2010 the Drug Enforcement Agency (DEA) seized many prisons' supplies, further contributing to the shortage. In response, prison officials relied more heavily on compounding pharmacies, which combine ingredients on-site to produce drugs. Since compounding pharmacies are bound by less strict FDA guidelines, concerns exist as to the purity and efficacy of these compounded substances. In an effort to get more information about these drugs, those facing death sentences and their attorneys started filing discovery and Freedom of Information Act requests. State legislatures blocked these attempts by passing secrecy statutes to make execution protocols confidential, including what drugs might be used and their suppliers. Once this happened, prisoners on death row filed lawsuits against the DOC claiming that this violated their constitutional rights to due process and access the courts. Without knowing how a state plans to execute someone, it is impossible for that person to review the information and bring any necessary Eighth Amendment cruel and unusual punishment claims.

The Oklahoma Approach

This is the problem Lockett ran into with the Oklahoma DOC. After Baze, Oklahoma courts confirmed that its own three-drug cocktail abided by constitutional standards in Pavatt v. Jones. Once Oklahoma hit a drug shortage, it had a choice to make if it wanted to continue using lethal injection: change its cocktail again or start using compounding pharmacies. To cover its bases, Oklahoma passed a new lethal injection protocol on March 21, 2014, allowing it to choose one of five different drug combinations for each. Other than agreeing to notify those facing execution which combination it would use, everything else remained secret. The attorney general's office informed Lockett that it would use midazolam, vecuronium bromide and potassium chloride and provided the amounts. The officials also told Lockett's attorneys that the drugs came directly from manufacturers and not from a compounding agency, but they refused to provide any names. They claimed this is necessary because otherwise its suppliers will receive threats and refuse to provide drugs in the future, inhibiting the State's ability to carry out death sentences.

Lockett's attorneys stressed how important it is to know all of the information, especially with the addition of midazolam to the cocktail. Midazolam was used in the highly controversial execution of Dennis McGuire in Ohio this past January, where witnesses reported that the procedure took 20 to 25 minutes and that McGuire was gasping for breath for 10 minutes before he was pronounced dead. Midazolam has also been used as part of a three-drug procedure in Florida, and, while the Florida execution seemingly went without issue, the Oklahoma protocol calls for less midazolam than Florida's. Since the amount of pain felt depends on this first drug, it is absolutely crucial that it is pure and efficacious.

On March 26, 2014, an Oklahoma district court found Oklahoma's secrecy requirements unconstitutional since it prohibited their right to access the courts. The attorney general appealed. The Oklahoma Supreme Court decided in a five to four vote that it would hear the case and granted both men a stay. Victory was short-lived, however, and on April 23, 2014, the Oklahoma Supreme Court ruled in favor of the DOC, finding that it was enough for Lockett to know what drugs would be used and that they do not need to know where the drugs come from.

Lockett's execution went ahead on April 29, 2014, and many of the concerns Lockett's attorneys had raised before the execution became a reality. The midazolam did not quickly render Lockett unconscious; after a doctor announced that Lockett was unconscious, Lockett attempted to speak and move around; and over 40 minutes into the procedure Lockett died of a heart attack. Additionally, the prison staff pulled a curtain when Lockett first started moving, so the witnesses — including Lockett's attorneys — were unable to see the rest of the execution. What actually happened in the execution chamber after the curtain was pulled became another state secret.

The Deadly Double Standard

Like many plaintiffs challenging lethal injection protocols, Lockett lost because the court did not want to rely on what might happen to him. While this was an access to the courts claim, the opinion still referred to the fact that this access "does not include the right to discover a cause of action . . . ." This only hindered prisoners' ability to bring a cruel and unusual punishment claim, since it makes it unlikely they will be able to meet the strict Baze standard without more information on how the state plans to kill them. Before Lockett's execution, he did not know whether the drugs were FDA-approved, whether the DOC obtained them legally, whether the drugs were created by a proper manufacturer or how the drugs were created at all.

Courts do, however, allow speculation from the DOC. Courts permit these officials, not just in Oklahoma but across the country, to hide behind what might happen if the public were to know more about executions, despite the fact that executions are supposedly committed on behalf of the people. The rationale behind the secrecy statutes has been to protect the identities of those involved in executions. DOCs may speculate that the drug suppliers will receive threats and that upon receiving threats all of their potential suppliers will refuse to sell them drugs. The courts are buying this. In doing so, they are allowing prisons to block death row prisoners' constitutional claims with the DOC's own speculative claim. If the DOC is allowed to justify its decisions on what might happen, then those facing execution should be allowed to build their claims off of what might happen (and clearly did happen). Instead, the protocol that was upheld in Baze - one that called for sodium thiopental, pancuronium bromide and potassium chloride; one that used drugs from FDA-approved manufacturers obtained via legal importing channels; and one that told people exactly what the suggested protocol was - has been replaced by protocols with alternative one-, two- and three-drug cocktails with a variety of suggested drugs; drugs thrown together by unregulated companies; and hidden information important for reviewing the constitutionality of execution procedures. In allowing this, the courts have turned Baze's safe harbor into Baze's come one, come all zone.

It remains to be seen how long the Supreme Court either passively allows this to continue, affirmatively condones it by granting cert and upholding lower court decisions, or provides those on death row with a meaningful opportunity to have a court review the constitutionality of the procedure to take their lives. In Justice Taylor's concurrence of the OSC's opinion, he wrote that prisoners are not entitled to information about the drugs, because "if they were being executed in the electric chair, they would have no right to know whether OG&E or PSO were providing the electricity . . . or if they were being executed by firing squad, they would have no right to know whether it be by Winchester or Remington." With all due respect to a state supreme court justice, the difference is that when a person is shot with a Winchester or Remington, they know what that gun will do to them. Electricity is electricity, regardless of which power company supplies it. The problem with drugs, and the whole point in having an FDA, is that it matters what substance a person puts in his body. It matters who made it; it matters how it was made; and it matters what it was made of. Lockett deserved to have as much information as possible about how the state of Oklahoma planned to kill him. The legalized secrecy in Oklahoma led to a horrific execution that could have been prevented if the Oklahoma Supreme Court had allowed Lockett and his attorneys to review the execution procedure beforehand and look for any indication that it could go wrong. Prisoners on death row deserve to know whether the state is going to kill them within constitutional parameters. Because the ultimate unknown is how much pain they will go through, and that answer remains a secret held only by those who have already been silenced.

Kimberly Newberry earned her BA from the University of Southern California in Creative Writing and Political Science. She is a student attorney with the Harvard Prison Legal Assistance Project and the Criminal Justice Institute. She has interned with the Southern Center for Human Rights in Atlanta, Georgia, the Department of Public Advocacy Post Conviction Unit in La Grange, Kentucky and the Capital Appeals Project in New Orleans, Louisiana.

Suggested citation: Kimberly Newberry, Secrecy in Lethal Injection: How the Oklahoma Courts are Supporting a Deadly Double Standard, JURIST - Dateline, Jun. 1, 2014, http://jurist.org/dateline/2014/06/kimberly-newberry-lethal-injection.php


This article was prepared for publication by Elizabeth Hand, a senior editor for JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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