JURIST Columnist Adam R. Banner discusses the recent controversies surrounding the executions in Oklahoma…

“They say lethal injection causes no pain. How do they know? Did someone come back from the dead and say they didn’t feel anything?” These prolific words, uttered by inmate Groves in the first season of HBO’s series OZ, had always resonated with me. Even before I became a criminal defense attorney in Oklahoma, I realized there was something slightly questionable about our government touting a method of execution as painless, or somewhere near that, when there is no actual data regarding the effects of the process; one can’t imagine there are many folks lining up to volunteer to test these cocktails. Consequently, our society ends up testing them on the inmates.

“There’s a chemical taste in my mouth,” Kenneth Eugene Hogan announced seconds after a lethal mixture of pentobarbital, vecuronium bromide, and potassium chloride was injected into his veins on Death Row at the Oklahoma State Penitentiary in McAlester, Oklahoma, on January 23, 2014. Just two weeks before, on January 9, 2014, Michael Lee Wilson, who was the first inmate to be executed in Oklahoma this year, said, “I can feel my whole body burning,” within twenty seconds of being injected with the state’s three-drug protocol.

These executions bookend the Ohio execution of Dennis McGuire, who took up to twenty-six minutes to die, according to one eyewitness, and who spent fourteen minutes of that time convulsing and gasping for air. McGuire’s execution was the result of a previously untested drug protocol using midazolam and hydromorphone. Although the state said that the execution went “very well” and that there were no plans to review the protocol, Louisiana postponed the use of the same two-drug protocol until its courts could rule on the constitutionality of the lethal-injection cocktail.

The slow and seemingly agonizing death of McGuire has prompted close inspection of lethal injection protocols across the nation, and death row inmates in Oklahoma have taken notice. Clayton D. Lockett, 38, and Charles F. Warner, 46, were originally scheduled to be put to death at the Oklahoma State Penitentiary on March 20 and March 27, respectively. However, they both filed a lawsuit against the state claiming that a secrecy clause in the Oklahoma statutes protecting the source and nature of the drugs used in Oklahoma executions leaves significant questions about the constitutionality of the execution procedure Oklahoma intends to employ.

Pentobarbital may be mixed with other substances, depending on its purpose, and the inmates allege that without full disclosure of the drug’s source, the mixture may not be effective for preventing pain and suffering during the execution. They say that the state’s “secrecy” means that any drug protocol may carry “a substantial risk of inflicting severe pain,” according to the petition. Pentobarbital, along with other drugs used in execution protocols, are now being procured from compounding pharmacies, which are not always regulated by the US Federal Food and Drug Administration (FDA).

When Oklahoma executed John David Duty in 2010, the first time pentobarbital was used for lethal injection in the US, an anesthesiologist testifying for the state told a federal judge that the five grams of pentobarbital used in Oklahoma’s execution protocol “is an enormous overdose in all cases,” and that “five grams of pentobarbital will cause a person to stop breathing.” However, that testimony refers to pure pentobarbital, and if the compounding pharmacy provides a different or weaker mixture, attorneys for Lockett and Warner say, their clients’ deaths may be agonizing and a violation of their Eighth Amendment right to be free from cruel and unusual punishment.

A hearing for the Oklahoma execution drug lawsuit was moved to federal court at the request of the state, but ultimately moved back to Oklahoma District Court due to attorneys for the inmates filing an amended complaint removing all claims pertaining to federal law. The resulting state-level lawsuit has actually gained a great deal of traction in the Oklahoma legal landscape. Oklahoma County District Judge Patricia Parrish initially denied any relief on the basis that she did not have jurisdiction to stay the executions nor determine whether Oklahoma’s secrecy clause was an unconstitutional denial of due process. The inmates filed an appeal to the Oklahoma Supreme Court, arguing that the District Court did have jurisdiction to determine the constitutionality of the secrecy clause, and also requested an emergency stay of their impending executions until the litigation was finalized.

The Oklahoma Supreme Court transferred the issue of the emergency stay to the Oklahoma Court of Criminal Appeals, which was denied. The Oklahoma Supreme Court remanded the secrecy clause issue to the Oklahoma County District Court, where Parrish ultimately ruled that the secrecy clause in Oklahoma’s death penalty statutory scheme is an unconstitutional denial of due process. As a result, the inmates once again petitioned the Oklahoma Court of Criminal Appeals for a stay of their executions pending the appellate litigation regarding the District Court’s holding regarding the secrecy clause. The Court of Criminal Appeals yet again denied the stay, ordering that it had no jurisdiction, pursuant to statutory construction of Section 1001.1(C) of Title 22 of the Oklahoma statutes, to issue a stay unless there is a pending action before that court challenging the conviction or sentence of death.

In a bit of a preemptive move, the state of Oklahoma increased the number or methods for lethal injection from its originally prescribed process to five individual cocktails that could be used based on the availability of the necessary drugs. After all, as states scramble to get their hands on drugs used in the lethal injection process, they really have no idea what will be available, or who they will be able to obtain it from for that matter.
Consequently, the inmates filed another appeal in the Oklahoma Supreme Court, challenging certain other civil rulings by the Oklahoma County District Court and once again requesting an emergency stay of their execution pending the outcome of the litigation. The Oklahoma Supreme Court retained the civil issues while once again transferring the issue of the application for emergency stay to the Oklahoma Court of Criminal Appeals, relying on the Supreme Court’s constitutional power to determine jurisdiction. In essence, the Oklahoma Supreme Court held that it did not have jurisdiction to decide the issue of an emergency stay, and that it was the Court of Criminal Appeals job to do so. The Supreme Court made sure to emphasis that its “determination shall be final.”

However, the Oklahoma Court of Criminal Appeals once again disagreed. In its decision, the Court of Criminal Appeals held that it did not have jurisdiction pursuant to its previous statutory construction argument. Moreover, the court went even further than merely denying the stay on jurisdictional grounds. As if it were not enough to defy the Oklahoma Supreme Court’s supposed “final” determination of jurisdiction, the Court of Criminal Appeals held that the Supreme Court did “not have the power to supersede a statute and manufacture jurisdiction.” Talk about a power struggle.

In return, the Oklahoma Supreme Court backtracked on its previous holding that it did not have jurisdiction and ultimately entered a stay of execution on its own. The court confirmed that it was “in an awkward position.” However, the Supreme Court decided to take the high road and refrain from denying the inmates access to the courts. Oklahoma’s Governor has now stepped in and issued her own stay, acknowledging that the Supreme Court did not have authority to do so on it’s own.

Presently, the state of Oklahoma has done its best to work-around the rulings of the Oklahoma County District Court. The state planned to use one of its five alternatives to execute both Lockett and Warner, and many other individuals currently setting on death row. The cocktail that Oklahoma planned to use has only been employed by one other state. Moreover, it appears that the amounts that Oklahoma intends to employ are not even as large as amounts previously used. Those who oppose the process argue that the quantitative amounts contemplated by Oklahoma are not large enough to insure the inmates are protected from cruel and unusual punishment.

Consequently, Oklahoma’s method of execution could violate the US Supreme Court’s ruling in Baze v. Rees. Pursuant to Baze, Oklahoma (and every other state) may execute prisoners through lethal injection. However, the specific cocktail used could be a violation of the Eighth Amendment’s prohibition on cruel and unusual punishment if the states refuse to adopt alternative procedures that significantly reduce a substantial risk of severe pain when they are feasible and readily implemented.

In the end, the real question here is a simple “Why?”. Why is the state of Oklahoma and ODOC so intent on protecting the source and nature of its execution drugs? ODOC argues that the secrecy clause helps shield companies which produce the drugs from public pressure and threat. However, the death-penalty debate is a nation-wide dialogue with two very devoted sides, and all available information should be accessible. At the very least, inmates should not be made human guinea pigs all in the name of retribution.

Adam R. Banner, founder of the Oklahoma Legal Group, is a criminal defense attorney in Oklahoma City, Oklahoma. His practice focuses on all issues relating to the defense of those accused of criminal activity. From trial litigation to appellate representation, he specializes in the protection of his clients’ constitutional right.

Suggested citation: Adam R. Banner, Oklahoma Appellate Courts Wrestle Over Death Penalty Secrecy Statute, JURIST – Professional Commentary, Apr. 28, 2014, http://jurist.org/hotline/2014/04/adam-banner-secrecy-clause.php.