A federal judge ruled on June 6 Oklahoma could continue its execution protocol, meaning up to 28 inmates may be executed by lethal injection in the next two years.
Federal Judge Stephen Friot rejected the challenge to Oklahoma’s three-drug protocol. This form of lethal injection uses 500 milligrams of midazolam as a sedative, 100 milligrams of vecuronium bromide as a paralytic and finally 240 milliequivalents of potassium chloride to stop the heart. Between each dose, 60 milliliters of saline is injected in order to prevent blood clots.
Experts said midazolam is ineffective as an anesthetic for lethal injections, as it has led to multiple problematic executions and causes excess fluid to build up in the lungs. The lawsuit claimed potassium chloride has a similar feeling to being burned alive if the prisoner is not properly sedated, and midazolam can feel like the prisoner is being suffocated, therefore violating the United States’ eighth amendment.
Midazolam, invented over 40 years ago, was initially used in medical procedures such as colonoscopies and cardiac catheterizations, according to The New York Times. Quickly, however, states started using the drug as a substitute for other sedatives in executions.
During the death penalty trial in Oklahoma on the constitutionality of lethal injections, Mark Edgar, director of autopsy services and a pathologist at the Mayo Clinic in Florida, gave expert testimony. After analyzing the autopsy results of 38 inmates executed by lethal injection, 29 of them suffered pulmonary edema from midazolam, the initial drug used in Oklahoma lethal injections. Midazolam was found to cause feelings of terror, pain and a sensation similar to drowning as the lungs begin to hold excess fluid.
Dr. Ervin Yen, an Oklahoma anesthesiologist, former senator and gubernatorial candidate, was hired by the state to be at three or four executions, testified that midazolam performed as intended in the executions he witnessed.
Yen said, however, it was possible those inmates died of asphyxiation while unconscious.
Attorneys questioned Yen over several pieces of EKG data and medical reports, and Yen said comparing those to Oklahoma’s lethal injection executions was like comparing “apples and oranges.”
As closing arguments wrapped on March 7, the prosecution offered several possible alternatives to the three-drug protocol. They suggested using the narcotic fentanyl to act as a sedative and pain reliever, citing “midazolam is not well-suited.” They offered another suggestion of using a firing squad instead of lethal injections, saying the state had plenty of resources to do so.
The state said in their closing arguments that the Food and Drug Administration approved midazolam as a general anesthesia, and they cited the past four executions as proof in favor of the three-drug protocol. The state argued against the plaintiff’s suggestion of the firing squad, saying it would be more painful than lethal injection.
Friot sided with the state, saying it was probable that an inmate would not feel pain “within a very short time after the midazolam is pushed.”
The lawsuit, from Charles Warner and 20 other death row inmates, reached the U.S. Supreme Court in 2014 after the botched execution of Clayton Lockett. Lockett died of a heart attack during his lethal injection execution on April 29, 2014 — over 43 minutes after the initial drug entered his system. News of Lockett’s botched execution, said to be caused by a failed IV, spread quickly, leading inmates to sue state officials.
Justices heard testimonies from experts about the usage of midazolam in lethal injections, its effectiveness and the possible pain it causes inmates. In a 5-4 ruling, the court ruled that states could use the drug in executions despite its hand in recent botched executions.
The court cited the lawsuit as lacking a better alternative for lethal injections. In 2015, Oklahoma halted executions after the incorrect drug was used to stop Warner’s heart.
Upon lifting the moratorium after six years, Oklahoma executed John Marion Grant, which resulted in reports that midazolam forced Grant to convulse and vomit. The Oklahoma Department of Corrections released a statement following Grant’s execution, saying it was carried out without complications. Scott Crow, the director of Oklahoma’s prison system, said they will continue executions.
The federal death penalty trial on the constitutionality of lethal injections went underway, and after hearing testimony from experts, Friot will decide the fate of executions in Oklahoma.
Currently, there are no more execution dates set in the state. However, if the state wins the trial, as many as two dozen inmates will see execution.
The death penalty debate in Oklahoma came to a head in November 2021 during the case of former OU student Julius Jones. On Nov. 1, the Oklahoma Pardon and Parole Board again voted 3-1 to recommend Gov. Kevin Stitt commute Jones’ sentence, pointing to insufficient evidence of guilt in the 1999 murder of Paul Howell, a white businessman.
Stitt said several times he would not commute his sentence, and Jones prepared for his death with a final meal and final phone calls with friends and family. On Nov. 18, four hours before his scheduled execution, Stitt announced he was commuting Jones’ sentence to life in prison without the possibility of parole.
In the midst of the trial, Oklahoma’s House Judiciary Committee voted on House Bill 3903, which would keep inmates sentenced to death from seeking commutation, and would not allow the Oklahoma Pardon and Parole Board to recommend commutation to anyone already sentenced to life without parole or death. The bill also would restrict inmates from seeking clemency based on claims of innocence.
The bill passed in a 5-6 vote and will head to the House floor for a vote. However, after numerous complaints urging state representatives to vote no, the bill will not be heard this session.
HB 3903, also known as the “Pardon and Parole Board Reform Act of 2022,” was authored by John Pfeiffer (R-Oklahoma), and received support from Oklahoma Attorney General John O’Connor before the vote on Wednesday.
Rev. Cece Jones-Davis, Justice for Julius campaign director, responded to the bill, calling it a direct reaction to the efforts made to save Jones. After the House Judiciary Committee passed the bill, Jones-Davis said “those who voted in favor don’t live on the same planet as Oklahoma’s 39 exonerees,” and the bill was because Jones wasn’t executed. Justice for Julius posted on social media, calling it the “No Second Chances” bill.
Prior to the beginning of the trial, Oklahoma had the nation’s first execution of the year on Jan. 27., with the death of Donald Grant who was convicted of the double murder of Brenda McElyea and Suzette Smith.
Richard Glossip, who was found guilty of the murder of his boss, Barry Alan Van Treese, may be the first execution to take place following this ruling. Glossip still claims his innocence, and he has garnered support from the public and even from members of the Oklahoma Legislature.
