An Oklahoma County District Court judge denied a stay of execution Monday for two men on Oklahoma’s death row.
Clayton Locket, 38, and Charles Warner, 46, asked the court to delay the executions until their civil lawsuit against the state can be adjudicated.
Lockett and Warner are suing the state Corrections Department, challenging the constitutionality of an Oklahoma law that allows the state to keep secret the source of its lethal injection drugs. Both men believe their inability to know the source of the drugs or their quality suggests Oklahoma’s execution method carries with it “a substantial risk of inflicting severe pain,” which would violate their constitutional rights against cruel and unusual punishment.
Lawyers representing the inmates filed for a temporary restraining order, which would delay their executions and allow their civil case to proceed. Lockett is scheduled to be executed March 20. Warner is scheduled to be executed March 27.
The state Attorney General’s Office filed an objection to the restraining order early Monday morning in which it asserts the Oklahoma Court of Criminal Appeals is the proper venue to hear the case. That court would be the third to hear the case. The restraining order was originally scheduled for hearing in district court, but the case was moved to federal court last week at the request of the state and then moved back to district court by a federal judge.
At the Monday hearing, attorneys for both parties discussed the lawsuit challenging the constitutionality of the law allowing the state to shield the identity of its source of pentobarbital, a barbiturate used in the lethal injection process.
Assistant Attorney General John Hadden said the statute is designed to protect those involved in the execution process. Hadden told the judge since the Apothecary Shoppe, a compounding pharmacy in Tulsa, has been identified as the possible source for the drug for both the state of Missouri and Oklahoma, the pharmacy has been sued and received death threats.
“Go back to medieval times. Executioners wore a hood,” Hadden said. “There’s a reason the state wants to keep it under wraps.”
In recent years, states have been forced to utilize compounding pharmacies, which are not regulated by the U.S. Food and Drug Administration, to acquire pentobarbital after the company manufacturing the drug put a stop to its distribution to corrections departments for use in lethal injections.
Attorneys and advocates around the country have raised concerns that compounded drugs could be potentially contaminated, causing severe pain to those executed.
Oklahoma has 10 doses of pentobarbital remaining of the 20 it purchased in 2012, but it's not clear where it got this supply. Oklahoma's doses are already in a usable form and have a shelf life of three years, state Corrections Department spokesman Jerry Massie told The Oklahoman in February.
What’s the objection?
Susanna Gatonni, one of the lawyers representing Lockett and Warner,said keeping the drug’s source a secret impedes addressing a possible civil rights violation. Speaking to reporters after the hearing, Gattoni said the public has a right to the information they are seeking.
“We should not want to live in a state that wants to hide how they’re enforcing the law, and that’s what the statute allows to happen,” Gattoni said.
Gattoni said they will be filing a motion with the Oklahoma Supreme Court, asking for an emergency stay for the execution and also will appeal the district court’s denial of the restraining order.