In ongoing litigation, attorneys from the CHU have partnered with the CHU in the Office of the Federal Public Defender for the Western District of Oklahoma to challenge Oklahoma's execution protocol. The litigation reached the United States Supreme Court in April 2015. The case moved to the High Court after the Tenth Circuit affirmed the district court's denial of a preliminary injunction for four prisoners with impending execution dates. Plaintiffs argued that Oklahoma Department of Corrections (ODC) procedures, which call for midazolam administration as part of a three-drug execution protocol, present an unconstitutional risk of pain and suffering in violation of the Eighth Amendment. In a narrow, 5-4 decision, the Court affirmed the denial of the preliminary injunction. Still, executions remain on hold in Oklahoma, pending the case's resolution on the full merits. A trial is set for May 2021.
The impetus for the litigation was a botched execution of Clayton Lockett. In April 2014, Oklahoma amended its execution protocol to require midazolam as the first drug in the three-drug execution protocol. Despite the questionable efficacy of midazolam, Oklahoma pressed ahead with the back-to-back executions of Mr. Lockett and Charles Warner on April 29, 2014.
During Mr. Lockett’s execution, it appeared he initially lost consciousness, but sometime during the second or third drug administration, Lockett began to move. A federal judge found that Mr. Lockett “raised his head and was heard to say, ‘man’ or ‘oh, man.’ . . . Lockett said, ‘This shit is fucking with my mind.’ Lockett was heard to mumble ‘something is wrong,’ and he moved his shoulders and head forward. . . . Lockett was heard to say, ‘The drugs aren't working.’" Mr. Warner’s scheduled execution was called off.
After the execution, an investigation revealed that the execution team set a faulty IV in Mr. Lockett’s femoral vein, which failed, causing drugs to flow into his tissues instead of his vein, resulting in a prolonged and painful death.
In June 2014, in the wake of the Lockett execution and after mounting evidence that midazolam cannot render prisoners unconscious and insensate, twenty-one condemned Oklahoma prisoners, filed a lawsuit. Plaintiffs argue that Oklahoma's execution procedures violated the Eight Amendment's prohibition against cruel and unusual punishment and sought a permanent injunction preventing the ODC from carrying out executions using the drugs and procedures used during Lockett's execution. Specifically, the complaint alleged that midazolam's pharmacological properties make it inappropriate as the first drug in the three-drug protocol because it is not capable of inducing and maintaining the level of anesthesia necessary to prevent condemned prisoners from experiencing the pain and suffering caused by the second and third drugs.
In November 2014, four prisoners with scheduled execution dates—Charles Warner, Richard Glossip, Benjamin Cole, and John Grant—sought a preliminary injunction seeking to prevent the state from executing them until the court could rule on the merits of their claims. After a four-day hearing, the court denied the motion for a preliminary injunction. The court held that the plaintiffs failed to establish that ODOC’s procedures presented an intolerable risk of harm and that plaintiffs had failed to identify an available execution method that would reduce the risk of harm. A unanimous Tenth Circuit panel affirmed the district court’s order denying the motion.
Plaintiffs petitioned for a writ of certiorari and sought to have their execution stayed by the U.S. Supreme Court. The Court denied Mr. Warner’s stay, and Oklahoma executed him on January 15, 2015. On January 23, 2015, the Court agreed to hear the case and stayed the remaining three executions.
In a 5-4 decision, the Court affirmed the district court’s denial of a preliminary injunction and found that the district court had not committed clear error when it found that “midazolam is highly likely to render a person unable to feel pain during an execution.”Glossip v. Gross, 576 U.S. 863, 881(2015). The Court also found that as part of the pleading standard in method of execution cases, petitioners were required to proffer a known and available method of execution that significantly reduced a risk of pain, and petitioners had failed to meet this burden. Id. at 880. Writing in dissent, Justice Sotomayor accused the majority of “misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the condemned inmate to identify an available means” of execution. Id. at 978.
After the decision in Glossip, Oklahoma sought to restart executions using the same three-drug midazolam protocol, which also called for the administration of vecuronium bromide and potassium chloride. Shortly before Richard Glossip's scheduled execution on September 30, 2020, the doctor preparing the drugs' syringes realized the pharmacy had supplied ODC with potassium acetate instead of potassium chloride. Due to the drug mishap, Governor Mary Fallin stayed the execution. Shortly after the Glossip execution was called off, ODC revealed that it had also carried out the execution of Charles Warner in January 2015 using potassium acetate instead of potassium chloride.
In October 2015, the Attorney General sought an indefinite stay of executions from the Oklahoma Court of Criminal Appeals to permit a multistate grand jury time to investigate the use of a drug not authorized by the execution protocol. In May 2016, the grand jury issued a 105-page report that identified numerous errors and systematic failures by ODOC and made several recommendations. ODOC again vowed to amend its execution procedures to address the deficiencies identified by the grand jury.
In March 2018, the Oklahoma Attorney General announced that due to difficulties procuring the drugs needed to carry out executions by lethal injection, the state would execute using nitrogen gas. However, in February 2020, the state announced it had found a supply of execution drugs and intended to restart executions using a slightly revised three-drug midazolam protocol.
The Glossip litigation was reactivated after the announcement of a new execution protocol. Plaintiffs filed an amended complaint on July 6, 2020, arguing that midazolam continues to present an unconstitutional risk of pain and suffering. The revised protocol contains few changes and remains inadequate to ensure that execution personnel will be qualified and trained to carry out executions in a humane manner. A trial is scheduled for the beginning of May, and the state of Oklahoma has agreed not to set execution dates during the pendency of the litigation.