The state has acquired the drugs necessary to execute two death row inmates this month from a compounding pharmacy, a spokesman from the state attorney general’s office said.
Aaron Cooper said the attorney general’s office sent an email to lawyers for death row inmates Clayton Derrell Lockett, 38, and Charles Frederick Warner, 46, notifying them the state Corrections Department has acquired lethal doses of midazolam and pancuronium bromide and plans to use them for the pair’s upcoming executions. The state already had a supply of the third drug in the execution process, potassium chloride.
Together, those three drugs are part of a new lethal cocktail that, because of a March 21 change in execution protocol, the state of Oklahoma is now able to try.
That mixture has never been used in the U.S., and midazolam has only been used in a three-drug cocktail in one other state, Florida, said Jen Moreno, staff attorney at the Berkeley Law Death Penalty Clinic in California. She noted Oklahoma’s protocol calls for a smaller dose of midazolam than Florida’s, which raises concerns.
“With the smaller dose of midazolam, there is a significant question of whether it would adequately anesthetize prisoners such that they are insensate for the administration of the paralytic and potassium chloride,” Moreno said. “In other words, it presents greater risks of conscious paralysis and suffering upon administration of the potassium than the Florida option presents.”
The change to protocol comes amid an ongoing search by the state Corrections Department to find two of the three usual drugs in the state’s three-drug execution mixture — pentobarbital, a barbiturate used to render the condemned person unconscious, and vecuronium bromide, a drug that relaxes the muscles.
Two commonly used sedatives in lethal injections in the United States, sodium thiopental and pentobarbital, became hard to get for corrections departments in recent years when manufacturers took steps to ensure their products would not be used in capital punishment. Since then, states have turned to compounding pharmacies to create pentobarbital.
Lockett is scheduled for execution April 22, and Warner is scheduled for execution April 29. Both executions were postponed for a month by the state Court of Criminal Appeals after a brief filed by the state revealed an agreement between a pharmacy and the Corrections Department for the lethal drugs fell through.
Both inmates recently won a case in Oklahoma County District Court, where a judge found a law allowing the state to keep secret its source of lethal injection drugs unconstitutional. They contended not knowing the source or quality of the drugs creates the risk they could be poor and cause the men pain during their executions.
“The midazolam is really troubling because it’s not, as I understand it, not necessarily an adequate anesthetic, and it causes air hunger and suffocation,” said Madeline Cohen, Warner’s federal public defender.
A letter from Assistant Attorney General John Hadden to Cohen also said the drugs were compounded. That fact increases the likelihood of a new civil rights case challenging the constitutionality of the state’s execution process, said Seth Day, one of the lawyers who represented Lockett and Warner.
Corrections Department spokesman Jerry Massie declined to comment on any aspect of the lethal injection process, including what drugs are in the state’s possession or any details about where they came from, due to the pending litigation.
The state is still well within its 30-day time frame to file an appeal to the judge’s ruling and has yet to disclose its lethal drug source.
Day said representatives for Lockett and Warner will file a request for an emergency stay of execution with the state appeals court this week.