An Oklahoma judge ruled the state’s execution law unconstitutional Wednesday because its privacy provision is so strict that it that prevents inmates from finding out the source of drugs used in executions, even through the courts.
After condemned inmates gasped or complained they were “burning” during executions in January, inmates Clayton Lockett and Charles Warner asked Oklahoma prison officials who was making the drugs that would kill them and whether the material was pure.
However, under state law, no one is allowed to disclose the source of drugs used in a lethal injection — even if an inmate sues and seeks the information as part of the discovery process. Oklahoma County District Judge Patricia Parrish said that prevents the inmates from exercising rights under the Constitution.
“I think that the secrecy statute is a violation of due process because access to the courts has been denied,” Parrish ruled.
The supply of drugs used in lethal injections has dried up in recent years as European manufacturers object to their use in executions and U.S. companies fear protests or boycotts.
Some death-penalty states have sought to buy or trade drugs with other states, and some have turned to compounding pharmacies that face less scrutiny from federal regulators. Many, like Oklahoma, made the process secret, too, to protect their suppliers.
Lockett and Warner’s challenge focused on what they called a “veil of secrecy.” They said they feared that if the drugs used to kill them weren’t pure, they could be conscious during their executions but unable to communicate. Knowing the source of the drugs could help them ensure the drugs were suitable, they said.
Assistant Attorney General Seth Branham warned the judge that she would be “treading into some deep water” if she ruled for the inmates. He said the inmates hadn’t proven they were at risk and that there was nothing they could do to stop their execution from being carried out anyway.
“This is all just speculation piled upon hyperbole,” Branham said. “What is the point of having the information if there’s nothing you can do with it?”
It wasn’t immediately clear when the inmates would receive the information. The state plans to appeal.
“I imagine the underlying decision will be stayed until the Oklahoma Supreme Court can weigh in on it,” said Seth Day, a lawyer for the men.
The inmates, who are to be executed next month, have stay requests pending before the Oklahoma Court of Criminal Appeals. They have not challenged their convictions or death sentences. Lockett was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was found guilty of the 1997 rape and murder of his girlfriend’s 11-month-old daughter.
Lockett is scheduled to die April 22. Warner’s execution is April 29.
Oklahoma last week changed its protocols to allow five distinct methods of execution.
Three procedures use a three-drug protocol that starts with either sodium thiopental, pentobarbital or midazolam and ends with vecuronium bromide, which paralyzes inmates, and potassium chloride, which stops the heart.
One uses a megadose of pentobarbital, and the other uses midazolam with hydromorphone. That mixtures was used in the Ohio execution of Dennis McGuire, who made gasp-like sounds for several minutes before being pronounced dead after 26 minutes.
Inmate Michael Wilson died at the Oklahoma State Penitentiary in January after a three-drug injection that started with pentobarbital. His final words were “I feel my whole body burning.”
Branham suggested in court Wednesday that Wilson’s lawyer may have coaxed him to complain in an effort to interfere with future executions.