BY RICHARD L. FRICKER
For the second time in less than a month Oklahoma Gov. Mary Fallin and Attorney General Scott Pruitt have suffered a judicial smackdown in their attempts to execute two inmates. This time the state Legislature also took the hit as another ideologue law was struck down by the courts.
Oklahoma County District Court Judge Patricia Parrish ruled Wednesday the 2011 state law making execution protocol secret was unconstitutional because it denied inmates access to the courts. The law in question deprives the public access to any information as to how executions are carried out – specifically the types of drugs used on inmates, suppliers, amounts paid or names of doctors or pharmacists.
The ruling came as the result of a lawsuit filed by death row inmates Clayton Derrell Lockett and Charles Fredrick Warner, originally slated to die by lethal injection this month for separate murders committed in the 1990s. The pair challenged the state’s protocol because drugs previously used are unavailable and earlier executions had been marked by claims of pain by inmates as they died and prolonged struggles during the death process.
Attorney General Pruitt issued a statement Wednesday saying the decision would be appealed. Members of his staff have openly vowed the pair would be executed, eventually.
The debate began five years ago as manufacturers of pentobarbital, the execution drug of choice, began refusing to supply states using the drug for executions. Most of the manufacturers are owned by European corporations where the death penalty is banned. Participating in an execution at any level could result in serious sanctions and fines.
As sources for the drug began to become scarce, various states – including Oklahoma and Missouri – turned to “compounding pharmacies.” These outlets mix designer drugs not commonly manufactured by mainline pharmaceutical companies.
Compounding pharmacies are largely unregulated and were able to substitute untested combinations of drugs to induce death. In general these pharmacies were paid in secret and in cash.
In an attempt to protect these pharmacies, the type of drug cocktail being administered, monies paid and whether or not the drugs had been maintained properly or tested, the Oklahoma Legislature passed HB 1991 during the 2011 session.
HB 1991 was enacted after a pharmaceutical supplier called Oklahoma administrators twice to say the drug would no longer be made available. The portion of the law under challenge says, “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. The purchase of drugs, medical supplies or medical equipment necessary to carry out the execution shall not be subject to the provisions of the Oklahoma Central Purchasing Act.”
State Sen. Constance Johnson, one of only three senators to vote against the act, said Wednesday, “They rushed this thing through; it was fast-tracked. I doubt many of the senators even knew what they were voting on.”
Sen. Johnson, an ardent death penalty opponent, said abolitionists were celebrating the ruling. “It’s wonderful” the Forest Park Democrat said. “They only passed this to keep the conservative agenda going.”
When the bill was introduced on Feb. 15, 2011, she said, “we didn’t know all the behind-the-scenes shenanigans they were pulling.” After passage, Oklahoma began substituting statute-prescribed drugs for cocktails from compounding pharmacies.
ACLU Executive Director Ryan Kiesel said Judge Parrish’s ruling was “a tremendous victory for both the abolitionists and the champions of transparency.”
The bill was introduced in the House by Rep. Mike Ritze, R-Broken Arrow.
“We need to know,” he said, “how the state is going to murder people. The death penalty can only survive in the shadows.”
Addressing why Fallin and Pruitt are pursuing Lockett’s and Warner’s executions with such vigor – in light of the fact the governor had followed through on two executions when the Pardon and Parole Board had recommended clemency – Kiesel said, “Anytime an elected official overrides a ruling by the Pardon and Parole Board it’s irrational. You shouldn’t be surprised when politicians enter into the equation.”
AG spokesman Aaron Cooper, on staff but not an attorney, said in a prepared statement, “The entire reason for Oklahoma’s confidentiality statute is to protect those who provide lethal injection drugs to the state from threats, coercion and intimidation.”
Cooper did not address why the types of drugs, amount and source of payment should also remain secret. It is known Oklahoma has paid out nearly $50,000 for death drugs since HB 1991 passed from what they term “petty cash.”
Early this month the Court of Criminal Appeals granted a stay of execution by a 5-0 vote, noting they doubted Pruitt would be able to secure proper drugs within the original execution timeframe. Two days ago, the state announced it had changed the execution protocol, but declined to say how it intended to carry out the executions.
Judge Parrish said it is precisely the unwillingness to disclose such information that deprives the inmates access to the courts because they have no information on which to launch and must accept death at the hands of the state by whatever means the state chooses.
In a state that has passed several “sanctity of life” laws against abortion and contraception, Oklahoma has shown itself equally up to the task of killing.
In addition to the secrecy provisions of HB 1991, the bill also provides, “B. If the execution of the sentence of death as provided in subsection A of this section is held unconstitutional by an appellate court of competent jurisdiction, then the sentence of death shall be carried out by electrocution.
“C. If the execution of the sentence of death as provided in subsections A and B of this section is held unconstitutional by an appellate court of competent jurisdiction, then the sentence of death shall be carried out by firing squad.”
Lockett and Warner remain under a death sentence with their execution set for April 22 and 29, respectively. In the meantime, the life and death struggle in a state said to value life, but thrives on the death penalty, continues in the courts as the governor and attorney general wait nervously to see if they draw a Tea Party primary opponent for being soft on crime.
Filing deadline for state offices ends April 11 – 11 days before Lockett is currently set to meet his death, by whatever means the state shall choose, or maybe not.
The decision whether Lockett and Warner live or die rests not with Gov. Fallin or AG Pruitt. Rather the decision rest with the courts. That is why our Constitution prescribes a separation of powers.
– Richard L. Fricker lives in Tulsa, OK, and is a regular contributor to The Oklahoma Observer. His latest book, The Last Day of the War, is available at https://www.createspace.com/3804081 or at www.richardfricker.com.