A federal judge will decide if Oklahoma’s lethal injection protocol is likely to cause unconstitutional pain and suffering.
The outcome of an upcoming federal trial will have long-lasting implications for the death penalty in Oklahoma.
A nearly eight-year-old lawsuit, filed by a group of Oklahoma death row prisoners who claim the state’s lethal injection protocol causes unconstitutional pain and suffering, will proceed to trial on Feb. 28 at the federal courthouse in Oklahoma City. U.S. District Judge Stephen Friot will preside over the hearing, which is expected to last one week.
Oklahoma Watch analyzed court documents and interviewed death penalty experts to better understand legal arguments and potential responses depending on the court’s ruling.
Here’s background on the lawsuit and what to expect when the trial begins:
How We Got Here
On June 25, 2014, a group of Oklahoma death row prisoners filed a lawsuit in U.S. District Court challenging the state’s execution protocol as unconstitutional. The prisoners, citing the problematic execution of Clayton Lockett on April 29, 2014, argued that the state’s execution process was likely to cause severe pain and suffering that violates the Eighth and Fourteenth amendments of the U.S. Constitution.
The lawsuit advanced to the Supreme Court in June 2015. In a 5-4 decision, justices ruled that prisoners had not met the burden of proof to show they would be subject to an unconstitutional level of pain. The court also ruled that condemned prisoners who challenge their execution method must present a known and available alternative.
The lawsuit returned to district court, where it was administratively closed in October 2015 after state officials imposed an execution moratorium. Further details of the state’s execution mishaps followed.
In May 2016, a multicounty grand jury released a report citing dozens of errors by state officials and systemic failures during executions, including former corrections director Robert Patton verbally modifying the protocol without authority and a pharmacist ordering the wrong execution drugs.
The case reopened on February 27, 2020, weeks after former Attorney General Mike Hunter and Corrections Director Scott Crow announced the state had secured an adequate supply of lethal injection drugs and developed new execution protocols.
Hunter had pledged not to seek execution dates with the lawsuit pending. His successor, John O’Connor, in August asked the Oklahoma Court of Criminal Appeals to schedule execution dates for seven prisoners. Six were removed from the federal lawsuit because they failed to identify an alternative execution method; the remaining prisoner, Bigler Stouffer, was pursuing a separate legal challenge.
Oklahoma ended its six-year execution moratorium on Oct. 28, putting John Marion Grant to death by lethal injection. Media witnesses say Grant convulsed dozens of times and vomited on himself after midazolam was administered. Dr. Jeremy Shelton, a state pathologist, wrote in an autopsy report that Grant’s lungs were heavy with fluid and that he breathed in vomit.
The state has since executed three other men — Bigler Stouffer on Dec. 9, Donald Grant on Jan. 27 and Gilbert Postelle on Thursday — without similar complications.
In an August court filing, Friot said a series of executions could produce evidence to be presented during the trial. Attorneys representing the state and death row prisoners will call witnesses who attended the executions.
The Prisoners’ Argument
The condemned prisoners claim the sedative midazolam, the first of three drugs administered in Oklahoma’s execution process, causes fluid to rapidly build in the lungs and creates a feeling of suffocation. The second drug, potassium chloride, causes extreme pain “similar to being burned alive” if the person being executed maintains consciousness, they claim.
“Midazolam does not induce and maintain prisoners in a state of unconsciousness and they will experience the pain caused by the second and third execution drugs. They will feel like they are drowning,” said Jennifer Moreno, an assistant federal public defender representing the prisoners, in a written statement. “In addition, Oklahoma’s use of a paralytic as the second drug exacerbates the risk inherent in this protocol. The paralytic serves no legitimate purpose other than to make it appear as if death is occurring peacefully while hiding any suffering and expressions of pain that occur.”
Autopsy reports from the state medical examiner’s office show John Grant and Bigler Stouffer had pulmonary edema. That condition, caused by excess fluid in the lungs, can make it difficult to breathe at the time of death. The office has yet to release autopsy reports for Grant and Postelle.
Federal public defenders also plan to argue the execution team lacks the training necessary to address issues during executions, Moreno said.
The State’s Argument
The state maintains previous execution problems were caused by inadequate training and lax protocols which have since been updated and corrected. Dr. Ervin Yen, an Oklahoma City anesthesiologist and former state senator hired by the state as a paid witness, told Friot midazolam will render a prisoner unconscious in 30 to 45 seconds and they will not feel pain after that.
The Department of Corrections released its current lethal injection protocol in February 2020. The protocol lists processes for verifying lethal injection drugs and details who may participate in executions.
“ODOC continues to use the approved three-drug protocol which has proven humane and effective,” the agency said in an October statement. “Extensive validations and redundancies have been implemented since the last execution in order to ensure that the process works as intended.”
If the Court Rules For the Prisoners
Oklahoma would have to find and use other drugs to carry out executions by lethal injection or attempt an alternative execution method. Executions would likely be put on hold.
The state constitution authorizes execution by nitrogen asphyxiation as a second option and by firing squad as second and third options. The attorney general’s office and Department of Corrections announced plans to conduct executions by nitrogen suffocation in March 2018 but struggled to find a willing supplier.
Alabama is poised to become the first state to execute a prisoner by nitrogen suffocation. Last month an attorney representing the Alabama attorney general’s office told a federal judge the state would release protocols this spring.
Alabama’s plan could become a model for Oklahoma state officials.
“Oklahoma, for whatever reason, has not been able to develop its own [nitrogen suffocation] protocol,” said Robert Dunham, executive director of the nonpartisan Death Penalty Information Center. “But that doesn’t mean once another state has developed its protocol that Oklahoma can’t adopt something very similar.”
In a nitrogen hypoxia execution, the prisoner would be likely fitted with a mask and breathe in pure nitrogen. Their body would quickly be deprived of oxygen, resulting in unconsciousness and ultimately death.
Proponents say nitrogen gas executions would be quick, painless and less prone to complications than lethal injections. Critics note there has been little research on nitrogen gas and the method remains susceptible to error. For example, the nitrogen could be diluted by a poorly fitted mask, prolonging the execution and increasing the likelihood of pain and suffering.
Any proposed nitrogen suffocation protocol would likely face intense legal scrutiny.
If the Court Rules Against the Prisoners
Oklahoma could proceed with its current lethal injection protocol, assuming state officials are able to maintain a supply of the drugs. At least 26 death row prisoners have exhausted their post-conviction appeals and would be eligible to receive an execution date.
Expect the losing party to appeal to the 10th Circuit Court of Appeals. From there, the case could advance up to the Supreme Court.
The appeals court agreed to temporarily stay two executions in late October, noting the prisoners had made a “strong showing” the state’s execution protocol would cause an unacceptable level of pain. That ruling was overturned by a 5-3 decision in the U.S. Supreme Court.
If Friot rules against the prisoners, state officials could look to schedule new execution dates as the appeals process plays out.
The National Impact
Lawsuits challenging lethal injection protocols are ongoing in 11 states, according to the Death Penalty Information Center.
“If the court declares the method unconstitutional, there’s no question that prisoners’ lawyers in other states that are using the three-drug protocol are going to be relying heavily on the ruling,” Dunham said. “And if the judge rules for Oklahoma, the prisoners’ lawyers will be looking for ways to distinguish the facts and circumstances in their case.”
Keaton Ross is a Report for America corps member who covers democracy for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss.