BY KATIE FRETLAND
Oklahoma’s inability to find regulated forms of lethal injection drugs has prompted postponements of two executions that had been planned for this week and next.
The Oklahoma Court of Criminal Appeals decided to delay the execution of Clayton Lockett from this Thursday to April 22, and the execution of Charles Warner from March 27 to April 29 as the state rushes to find the fatal pharmaceuticals on a national gray market.
The murder convicts’ defense lawyers – including members of Colorado’s federal public defenders office – are seeking to stop the executions also on grounds that Oklahoma’s death penalty procedures were shrouded in secrecy.
Oklahoma announced Monday that its covert deal to buy lethal injections fell through, highlighting a shadowy market for death penalty drugs and raising questions about protecting secret drug suppliers from public scrutiny. Records obtained by The Colorado Independent reveal a disturbing flippancy among high-level officials who have been involved with executions in Oklahoma.
In response to a request from Texas for advice on how to deal with the scarcity of the lethal injection drug sodium thiopental, records show that Oklahoma Assistant Attorney General Seth Branham quipped in a January 2011 e-mail to a colleague that Oklahoma might cooperate in exchange for much sought-after 50-yard-line tickets to the Red River Rivalry, a football game between the University of Oklahoma and the University of Texas. In a reply, fellow Assistant Attorney General Stephen J. Krise joked that for Oklahoma’s assistance Texas’ team should intentionally lose several games.
“Looks like they waited until the last minute and now need help from those they refused to help earlier,” Krise wrote. “So, I propose we help if TX promises to take a dive in the OU-TX game for the next 4 years.”
Attorney general lawyers serve not only as legal advisors to state agencies but also as law enforcers. Banter about exchanging lethal injection help for football tickets and other favors raises questions about how seriously Oklahoma officials take the death penalty, which they have meted out about four to five times a year since 1990.
Branham is at the forefront of death penalty litigation in Oklahoma. He is the assistant attorney general named in court documents seeking to carry out the upcoming executions of Lockett and Warner.
In an Oklahoma County district court, lawyers for the condemned convicts are challenging the constitutionality of a state law concealing the sources of lethal injection drugs now that manufacturers — pharmaceutical companies based in European countries, where capital punishment is outlawed — have banned their products’ use for executions.
The scarcity of lethal injection drugs has prompted concerns that states are turning to compounding pharmacies to concoct virtually unregulated lethal injections that may be more painful and slower to take effect than required by the constitutional protection against cruel and unusual punishment.
Oklahoma has bought lethal injection doses using petty cash accounts that allow the state to protect the identity and avoid scrutiny of its suppliers. Officials won’t say who manufactured and sold the drugs used in at least the last 11 executions, or whether the doses are pure enough to meet what the U.S. Supreme Court has ruled is an obligation to carry out the death penalty as humanely as possible.
In order to carry out the upcoming executions of Lockett and Warner, the state could try to revise its lethal injection protocol to use other drugs that are available. However, any revision would likely meet legal challenges.
Meanwhile, to execute the convicts in April, officials are scurrying to track down two of the drugs allowed in its current protocol. According to the last set of publicly released documents outlining its death penalty protocol, Oklahoma – like other states – uses what’s known as a “three-drug cocktail” designed to quickly put a person to sleep before death. Oklahoma’s protocol authorizes the use of sodium thiopental or pentobarbital as the first drug to cause unconsciousness. That’s followed by an injection of vecuronium bromide to paralyze the prisoner and stop breathing, and then potassium chloride to stop the heart.
In its filing on Monday, lawyers for Oklahoma said that they are having trouble procuring both pentobarbital and vecuronium bromide.
“The State will continue to pursue any and all leads in an attempt to obtain the necessary execution drugs in the days leading up to the scheduled executions for Lockett and Warner,” Branham wrote in that filing. “Should the drugs become available, [the corrections department] intends to proceed forward with these executions as scheduled …”
The efficacy of Oklahoma’s death penalty drugs came under scrutiny in January when convict Michael Lee Wilson, after being injected with pentobarbital meant to knock him unconscious, was fully coherent when he said in the execution chamber that “I feel my whole body burning.” The corrections department refused to say where Wilson’s injection was made, who sold it to the state and whether it had been tested.
The death penalty is legal in 32 states, including Colorado. But lethal injection has been difficult to carry out because of lawsuits and a severe scarcity of drugs.
Sodium thiopental had been Oklahoma’s anesthetic of choice for executions until the Illinois-based pharmaceutical company Hospira stopped selling it because it was trying to have it manufactured in Italy, where the anti-death penalty government banned its exportation for use in executions.
As sodium thiopental started becoming scarce in 2010, Oklahoma was the first state to substitute it in a three-drug protocol with another anesthetic, pentobarbital. It didn’t take long for that drug’s maker also to object. Twice in 2011, the Danish manufacturer Lundbeck, Inc. wrote the state of Oklahoma asking it to stop using pentobarbital in executions.
“The use of pentobarbital outside of the approved labeling has not been established,” the company wrote. “As such, Lundbeck cannot assure the associated safety and efficacy profiles in such instances.”
Oklahoma said in the recent court filing that pentobarbital remains in short supply and vecuronium bromide “is difficult, if not impossible, even for hospitals and medical professionals to obtain.” The corrections department believed it had secured a supplier, but the deal fell through last week, according to the court document.
The source of Oklahoma’s drugs is a state secret. “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings,” according to a law passed in 2011 after drug companies stopped selling their products to kill prisoners.
Secrecy around the death penalty drugs isn’t unique to Oklahoma. As the scramble for drugs intensified, Georgia and Missouri, among other states, also passed laws shrouding information about lethal injection drugs. Georgia planned to use compounded pentobarbital for the execution of Warren Lee Hill last year, but a judge stayed the execution because of the state’s secrecy about the drugs. The judge said the inmate and public lacked enough information about the drug’s safety and how it was compounded. That case is still pending in the Georgia courts.
In Arkansas last month, a judge blocked lethal injection in the state on grounds that the protocol is unspecific about what barbiturate to use.
Last year, before Colorado Gov. John Hickenlooper blocked what would have been the state’s first execution since 1997, his administration refused to disclose which lethal injection drugs it would be using and who was making the drugs. The American Civil Liberties Union of Colorado sued for the information, and continued the lawsuit even after Hickenlooper granted convicted murderer Nathan Dunlap a temporary reprieve. A court ordered the state to reveal the protocols it had planned for Dunlap’s execution. The corrections department, in turn, has said it will update its protocol before any future execution.
Documents revealed that Colorado queried compounding pharmacies across the state for sodium thiopental, pentobarbital or similar drugs. Compounding pharmacies generally mix special-order drugs for patients’ needs. A lack of regulation for these types of pharmacies came to light in 2012 when a compounded drug was linked to a deadly meningitis outbreak.
Under the cover of Oklahoma’s 2011 secrecy law, the state in 2012 bought 20 rounds of pentobarbital for $40,000 from an unknown supplier with a check from a petty cash account that shields the identity of the seller. It’s unclear whether the injections were made in a compounding pharmacy or whether a lack of oversight – compared to lethal injections sold by highly regulated pharmaceutical companies – led to the whole-body burning sensation Wilson described in the death chamber.
Lockett is sentenced to death for the 1999 murder of 19-year-old Stephanie Nieman, and Warner faces execution for the 1997 murder of 11-month-old Adriana Waller. Each was also convicted of raping his victim.
Both men are represented by lawyers from Colorado’s Federal Public Defender’s office. At the request of the Tenth Circuit Court of Appeals, federal capital defense specialists have been dispatched to represent death penalty clients in a state that’s tied with Virginia for the second highest execution rate in the nation.
Denver-based assistant federal public defenders Madeline Cohen and Dean Sanderford, who represented Warner and Lockett in their federal appeals, secured the help of lawyers in Oklahoma City to mount a challenge to the state’s execution-secrecy law. Those lawyers, Susanna Gattoni and Seth Day of the Hall Estill law firm, are now asking the Oklahoma Court of Criminal Appeals and an Oklahoma County district court to stay the executions because of the extreme secrecy with which the state carries out the death penalty. They seek to know the source of the lethal injections and the protocol for how they’ll be administered to ensure Lockett and Warner’s executions aren’t needlessly prolonged or painful.
“We need to know what drugs are being used, where they are made, under what conditions, how they are stored, all those details, because we know the strictly regulated supply of execution barbiturates are no longer available,” Cohen said.
The Oklahoma Attorney General’s Office asserts that convicted murderers Lockett and Warner will be executed as ordered, despite arguments over lethal injection secrecy.
“Here, no matter what Appellants discover about the protocol, their death sentences will be carried out by some constitutional means,” the state wrote in a court filing.
The constitutional issue that pertains to death penalty protocols is the 8th Amendment ban on cruel and unusual punishment. Most state constitutions, including Oklahoma’s, include similar protections. There is much debate among prison officials, lawyers, medical professionals and civil rights activists about what’s cruel and unusual when it comes to executions.
Convicts executed in Oklahoma have in some cases died from overdoses of pentobarbital or sodium thiopental, the anesthetic, rather than the second and third injections in the three-drug cocktail, according to documents obtained by The Independent. Records show executioners then injected the remaining two drugs into convicts’ dead bodies for what forms turned over in response to an open-records request refer to as “disposal purposes.”
Jerry Massie, the spokesman for the prison system, defended the practice, saying it follows state protocol.
But Dr. Joe Cohen, a forensic pathologist, said injecting leftover drugs into dead bodies may distort postmortem toxicology results, thereby preventing the public from knowing what an inmate experienced during the execution.
Questions about the effects of lethal injections have piqued since the highly regulated anesthetics went off the market for executioners.
Unable to buy pentobarbital, Ohio used a never-before tried combination of the sedative midazolam and the painkiller hydromorphone during a January execution. The convict, Dennis McGuire, gasped and convulsed during his execution, which took about 24 minutes, according to media witnesses. The Associated Press reported that Ohio bought the Hospira-made drugs through the San Francisco drug distributor McKesson. Hospira has said in a statement that, although it opposes use of its drugs for executions, it can’t control all grey market channels.
Given that the scarcity of lethal injection drugs has prompted states to use alternative drugs or covertly buy unregulated copies of commercial drugs, defense lawyers fear their death row clients’ execution will be torturously painful.
“We’ve seen multiple botched executions just in the last few months,” Cohen said. “This should be spurring our corrections departments to open full investigations into what’s happened and to create as much transparency as possible in the execution process. But just the opposite is happening.”
Pentobarbital from an unknown source was used in the June 2011 execution of Roy Willard Blankenship in Georgia. Blankenship’s eyes were open during the procedure, during which he grimaced in pain.
The Oklahoma Attorney General’s Office was aware of reports that Blankenship’s execution was botched, documents show. Assistant Attorney General Jenny Dickson forwarded an article about that execution to Assistant Attorney General Jennifer Miller in July 2011.
“The news should raise concerns around the execution process in the eight U.S. states that have already carried out executions using pentobarbital, and the many others that are planning to do so,” read the article by the prisoners rights group Reprieve.
Nevertheless, by August 2011, the Oklahoma Department of Corrections bought $10,400 worth of pentobarbital from an unknown supplier, using petty cash bills.
The state continued to buy bigger stashes of pentobarbital under the cloak of secrecy. It’s unclear why doses of pentobarbital from the $40,000 petty cash purchase in 2012 were unavailable for this month’s executions. Massie, the department spokesman, declined to discuss the ongoing legal matter.
Given that Michael Lee Wilson said he felt his body burning when Oklahoma executed him in January, Lockett and Warner want to know what drugs the state plans to injected them with. Their lawyers also seek to know the source of the drugs, how they were manufactured and stored and whether they’ve been tested for effectiveness under 8th Amendment standards.
The corrections department has called the need for secrecy about those involved in executions is a safety and security matter. Massie said the names of drug suppliers and executioners must remain secret to protect them from death penalty opponents and associates of the condemned death row inmates. In addition to using petty cash accounts to pay for secret suppliers for the drugs, Oklahoma pays unnamed executioners $300 cash bills to carry out executions.
A lawsuit challenging the law allowing Oklahoma to hide information about its executions is scheduled for a hearing before an Oklahoma County district court judge March 26.
Oklahoma Sen. Constance Johnson, D–Forest Park, is a death penalty opponent who says details of Oklahoma’s lethal injection process should be brought to light for the public’s awareness and assurances that convicts won’t needlessly suffer.
“We need to find out what’s really going on in Oklahoma,” she said. “We’ve got two executions coming up. I think it’s timely and urgent.”
Nowhere is the scarcity of lethal injection drugs harder felt than in Texas, which has executed 510 people — more than any other state — since the U.S. Supreme Court reinstated the death penalty in 1976. Oklahoma and Virginia have executed 110 people. Colorado ranks low on the list of how many people have been executed in each state. It has executed one person since 1976, as did Connecticut, New Mexico and Wyoming.
As Texas’s supply of sodium thiopental was about to expire, Texas Assistant Attorney General Laura Grant Turbin wrote a mass e-mail to other states’ assistant attorneys general in January 2011 asking how they’ve legally argued for using what she called “substitute drugs” for executions.
That’s when Branham and Krise in the Oklahoma Attorney General’s Office started joking about what they should get for helping out.
“The mention of a football game was merely in jest and along the lines of cop humor among dedicated professionals who deal with very serious and weighty issues on a daily basis,” Diane Clay, spokeswoman for the office of Oklahoma Attorney General Scott Pruitt, said in a statement to The Independent.
She noted that the e-mails “were part of many months of discussion and conversation about what various states faced with a lack of supply for carrying out the statutorily required punishment chosen by a jury.”
Branham was apparently amused by the fact that Texas needed help after having hogged sodium thiopental supplies in the past. In November 2010, Texas had 39 doses of sodium thiopental while Oklahoma and other states had run out. Texas declined to share even though the 39 doses were, according to media reports, set to expire in March 2011 and the state only had three executions planned.
“Looks like they waited until the last minute and now need help from those they refused to help earlier,” Branham wrote.
In an e-mail to his colleague, he dubbed the group of Oklahoma officials who had been working to procure lethal injection drugs “Team Pentobarbital.” As the joke went, the prospect of helping Texas meet its lethal injection needs after having been thwarted was so generous that it entitled them to public adulation and free perks.
Branham e-mailed Krise that he would “forgive and forget with sideline passes for Team Pentobarbital [you, me, Martha, the Warden, Mike Oakley, plus anyone else we can think of who is deserving] to the 2011 OU-Texas game plus an on-field presentation of a commemorative plaque at halftime recognizing Oklahoma’s on-going contributions to propping up the Texas system of capital punishment.”
His wish list of payback didn’t end with football.
“And throw in lifetime passes for the North Dallas Tollway, Highway 121 and the Bush Turnpike,” he wrote. “That would be a good deal.”
— Katie Fretland is a Tulsa-based writer. This article first appeared in the Colorado Independent andis reprinted here by permission.
