The state does not have the drugs needed to execute a man scheduled to die this week, according to a brief filed Monday with the Oklahoma Court of Criminal Appeals.
In the brief, filed in response to a stay of execution request made by two Oklahoma inmates, Assistant Attorney General Seth Branham revealed state Corrections Department officials said Friday they were having difficulty obtaining two of the drugs in the state’s three-drug execution cocktail — pentobarbital and vecuronium bromide.
Officials have “pursued every feasible option to obtain the necessary execution drugs,” the brief states.
“This has been nothing short of a Herculean effort, undertaken with the sole objective of carrying out ODOC’s duty under Oklahoma law to conduct Appellants’ executions. Sadly, this effort has (so far) been unsuccessful.”
A commitment from a pharmacy to supply the drugs fell through, Branham wrote.
In February, Corrections Department spokesman Jerry Massie said Oklahoma had 10 doses of pentobarbital, a barbiturate used to render the condemned person unconscious.
Massie declined Monday to say what happened to those 10 doses or if they had expired, saying he would not discuss ongoing legal matters.
Clayton Derrell Lockett, 38, is scheduled to be executed at 6 p.m. Thursday for the 1999 murder of Stephanie Neiman, 19.
Lockett and inmate Charles Frederick Warner are asking for a stay of execution until a lawsuit they brought against the state can be heard.
Warner, 46, is scheduled for execution March 27 for raping and killing 11-month-old Adriana Waller in 1997.
Lockett and Warner are challenging the constitutionality of the state’s ability to keep its source of lethal injection drugs secret.
They say not knowing the source means not knowing the quality of the drugs, which may be contaminated and cause them pain during the execution and violate their constitutional rights protecting against cruel and unusual punishment.
Their original petition cited the execution of Michael Lee Wilson by Oklahoma in January. Wilson’s last words were, “I can feel my whole body burning.”
After that case bounced between courts in recent weeks, Oklahoma County District Judge Patricia Parrish agreed to hear it Thursday, the same day Lockett is scheduled to die.
It is up to the Oklahoma Court of Criminal Appeals whether to grant the request for a stay of execution.
Lethal injection is the only legal form of execution in Oklahoma today. Statute allows the use of the electrocution chair if lethal injection is found unconstitutional, and the use of a firing squad if electrocution is found unconstitutional.
Massie also declined to say whether the state is considering the use of an alternative drug, which would call for a change in department procedure.
In their lawsuit, Lockett and Warner also argue a change to execution procedure by the state Corrections Department in 2010, allowing the use of pentobarbital, was a violation of the Administrative Procedures Act.
One of the attorneys representing the men, Madeline Cohen, said any attempt to change protocol now and introduce a new drug to the lethal injection process also would be a violation of that act.
An attorney general’s spokesman would not comment on the implementation of the act.
“At this point, it’s premature to discuss the next steps in the process,” spokesman Aaron Cooper said. “The attorney general’s office is exhausting all available options to ensure the punishment for this heinous crime is carried out, so that after nearly 15 years the family of Stephanie Nieman finally sees justice served.”