Oklahoma Wants To Use Its Old Lethal Injection Protocol, Despite Past Botched Executions

Oklahoma messed up three executions in just two years.

Oklahoma took a five-year hiatus from the death penalty after botching three executions in just two years. Now Gov. Kevin Stitt says the state will start killing convicts again—with the same lethal injection protocol as before.

Stitt, Attorney General Mike Hunter, and Department of Corrections Director Scott Crow announced on February 13 that the state possesses a "reliable supply of drugs" and would resume lethal injections using its old three-drug protocol. This series of injections features midazolam (a sedative), vecuronium bromide (a paralytic), and potassium chloride, which induces cardiac arrest.

"It is important that the state is implementing our death penalty law with a procedure that is humane and swift for those convicted of the most heinous of crimes," Stitt said in the announcement. Yet the three-drug protocol worries criminal justice reformers.

Midazolam, which makes death row inmates appear to lose consciousness, was used in the horrifically botched 43-minute execution of Clayton Lockett on April 29, 2014. Though officials administered the midazolam and declared Lockett unconscious, he awakened less than 20 minutes into the process, began to struggle and say "man" aloud, and tried to get up. An investigation later revealed that the IV placed near his groin had leaked, which went unnoticed because the area was covered. The blinds were lowered to shield the witnesses from the scene, which led to a First Amendment lawsuit; officials discussed how to stay the execution and save Lockett's life. Lockett died shortly after.

With that experience in mind, death row inmate Richard Glossip is trying to fight the state's use of midazolam.

Glossip is currently on death row for the 1997 murder of motel owner Barry Van Treese, his former boss. Though it was Justin Sneed, Glossip's then-19-year-old coworker, who beat Treese to death with a baseball bat, Sneed told investigators that Glossip pressured him into comitting the murder. Glossip has long maintained his innocence, and no physical evidence ties him to the crime.

Glossip, who has now exhausted all appeals, was set to die in September 2015. His execution was halted at the very last moment because the state did not have the correct drugs to carry out the execution. (Earlier that year, an autopsy revealed that the state had used the wrong drug to execute Charles Warner. Though the authorities were sure they followed protocol by using syringes marked as potassium chloride, the vials actually came from a box labeled as potassium acetate.)

A few months prior to his last-minute stay, Glossip's lawyers noted in a brief that midazolam had failed to properly sedate death row inmates in Ohio and Arizona. In the latter state, Joseph Wood gasped for two hours before he finally died, despite the administration of midazolam; that prompted a doctor to testify that the execution was "unintentional experimental proof that large doses of midazolam do not necessarily kill you, [nor do they] guarantee unconsciousness, and that the administration of additional doses do not cause further depression of consciousness."

Taking into account the failings of a midazolam-based lethal injection protocol, as well as Oklahoma's botched (and nearly botched) executions, advocates have little faith in the state's ability to avoid old mistakes.

Dale Baich, assistant federal public defender in the District of Arizona, represented Lockett and is now representing Oklahoma death row prisoners in a lethal injection lawsuit. Baich tells Reason he's concerned about Oklahoma's announcement that it's returning to the old injection protocol because it does not include a guarantee that the state has addressed "the significant problems that have plagued recent executions efforts."

"Oklahoma's history of mistakes and malfeasance reveals a culture of carelessness around executions should give everyone pause," he adds.

While the governor may be prepared to resume the death penalty, at least one politician in the state has called for dropping the practice altogether. Rep. Jason Dunnington (D–Oklahoma City) introduced a bill in January hoping to eliminate the death penalty by November. But the measure would not apply to Glossip or anyone else already on death row.

A state moratorium on executions was implemented following Warner's death. In 2017, the Oklahoma Death Penalty Review Commission recommended that it be extended until the state could make significant changes to ensure fewer mistakes. This included updating its three-drug protocol to a one-drug barbiturate protocol.