Update, 5:30 pm: By a 5 to 4 vote, the Oklahoma Supreme Court issued a new stay, halting the scheduled executions pending resolution of the injection-secrecy issues. It is unclear whether the Court of Criminal Appeals will honor this stay, although court watchers in Oklahoma say that will likely be the case.
How chaotic has the fight over lethal injection secrecy become? The top two courts in Oklahoma today are in conflict with one another over whether two condemned men should be executed there this month before state officials have to disclose basic information about the drugs they intend to use to carry out the executions. It is conceivable that both men will be executed, even though the Oklahoma Supreme Court has declared that the legal issues the men have raised about injection secrecy ought to be fully adjudicated before their deaths.
It is almost certain that these two unsympathetic defendants ultimately will be put to death for their crimes. Clayton Lockett, convicted of murdering teenager Stephanie Neiman in 1999, is scheduled to die by lethal injection tomorrow. Charles Warner, convicted of raping and murdering an 11-month-old baby in 1997, is scheduled to be executed one week later, on April 29th.
But lawyers for both men argue that Oklahoma has violated both state and federal law by refusing to disclose where it obtained the drugs to be used on Lockett and Warner, how the drugs were manufactured, what their efficacy may be, and other basic information necessary to determine whether the upcoming executions would violate the "cruel and unusual" punishment clause of the Eighth Amendment. It is an argument being made by other attorneys in other death penalty states that are suddenly scrambling to find new execution drugs.
The Oklahoma Supreme Court, which handles civil cases, seems to believe a stay of execution is necessary to look further into the issues the men have raised. But that court and the Oklahoma Court of Criminal Appeals, which handles criminal cases, can't agree about which of them has the power to enter a stay. The Supreme Court says it's the OCCA. The OCCA says it can't and won't enter a stay because the prisoners have not filed a substantive claim there. And the prisoners say they can't challenge the protocol without the drug information they seek.
So now there is a dispute between the courts over whether the issues raised by the prisoners are "civil" or "criminal" in nature and, if they are "civil" whether the executions should be delayed. It's like a skit from Alphonse and Gaston. Only Texas has such a bifurcated appellate system that one high court handles civil cases and another handles criminal cases. But even in Texas—which, like Oklahoma, now conceals material information about injection drugs—the courts have not been as divided as they have in this Oklahoma case.
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The problem at the root of the Oklahoma conflict is the same problem that vexes officials in other states still actively pursuing the death penalty. In 2011, the manufacturers of sodium thiopental, the key ingredient in the lethal "cocktail" states then were using, announced they would stop making the drug due to objections about its use for capital punishment. Since then, state officials have struggled to come up with new combinations of drugs that can kill in a way that is arguably "humane" under the Eighth Amendment.
In many instances, since supplies of sodium thiopental ran out, state officials have had to rely upon "compounding pharmacies" to procure the drugs to be used for lethal injections. But the products produced by these pharmacies have long been considered unsafe and controversial—so much so that the Obama Administration last November signed the Drug Quality and Security Act, federal legislation designed to regulate the industry.
The use of these murky pharmacies has raised legitimate questions that did not need to be considered when a respected drug manufacturer was doling out lethal doses of sodium thiopental. What lawyers for Lockett and Warner want to know—indeed what attorneys for hundreds of death row inmates in Oklahoma, Texas, Florida, Missouri, and Louisiana, Georgia want to know—is whether the new cocktails to be used upon their clients are "safe"—that is, whether they will inflict undue pain upon the dying.
It seems like an absurd concern. The whole point of the death penalty, its supporters say, is to inflict some measure of pain upon the condemned as death comes. But there is a point along the spectrum of pain where an otherwise lawful execution becomes "cruel," and thus unlawful, under the Constitution. What defense attorneys now argue is that they cannot even begin to evaluate whether the state will encroach upon that line if they have no idea about the origins of the drugs to be used. And right now, in Oklahoma, they don't.
Over the past few years, Oklahoma's relentless drive to keep executing inmates has produced a flurry of changes to the state's injection protocols. In November 2011, lawmakers changed state law to add a secrecy provision—to keep hidden information about the origins of injection drugs. In January 2014, the state executed an inmate named Michael Wilson, who said as he died, "I feel my whole body burning." One defense expert cited in court papers says this may be because Oklahoma was using a contaminated compounded drug.
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Today, Oklahoma is trying something new—and largely untested. It now says it wants to execute Lockett and Warner, and perhaps future death row inmates, using a three-drug combination of midazolam, pancuronium bromide, and potassium chloride. State officials notified defense attorneys that this brew would be used against their clients three weeks ago—less than one month before the scheduled executions and just a few days after the state's injection secrecy law was declared unconstitutional.
Oklahoma has never before used midazolam in an execution. There has to be a first for everything, right? Except that no other state that has ever used midazolam to execute a man has ever used it in the dosage now suggested by Oklahoma. So not only are the origins and efficacy of these drugs unknown but there is no record suggesting one way or the other whether the combination Oklahoma plans for Lockett and Warner will inflict unconstitutional pain.
To the Oklahoma Supreme Court these issues—essentially new to death penalty law—warrant further review. In late March, for example, a state trial judge ruled that the state's injection secrecy law was unconstitutional—"I do not think this is even a close call," the judge declared—and that ruling still has not been fully vetted by either of the two appellate courts. How could Oklahoma execute two men under a law already declared unconstitutional before judicial review is completed? That's the essence of the argument this court is making.
To the Oklahoma Court of Criminal Appeals, the issue is equally clear. In an order published late Friday, a divided court concluded that it does not have to issue a stay of execution just because the Oklahoma Supreme Court has concluded that there are "civil" issues that ought to be resolved before any more executions take place.
This conflict, it appears, falls in a crack between the two courts. So the Oklahoma Supreme Court is waiting to hear the appeal of the ruling that declared the state's secrecy law unconstitutional. And the Court of Criminal Appeals is refusing to stay the pending executions. The men thus evidently have a right to have their case heard but no remedy to spare them from death before it is heard. The United States Supreme Court, to date, has remained virtually silent through this new period of chaos over lethal injection secrecy, allowing one condemned man after another to be executed without intervening.
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In a concurrence to Friday's ruling, Court of Criminal Appeals Judge Gary Lumpkin, a former Marine and prosecutor, accused the defense lawyers of seeking to "take advantage of our bifurcated system of justice" by raising their claims in "civil" court instead of in criminal court where they belong. But that begs the question, still unresolved in Oklahoma or elsewhere, of whether these new and numerous injection secrecy matters are "criminal" or "civil" in nature or (as I suspect) some combination of both.
What Judge Lumpkin is doing, actually, is setting a trap. For as soon as the lawyers for Lockett and Warner file their claims as "criminal" matters, those claims will be denied in the state's criminal courts. You cannot sustain an Eighth Amendment claim here unless you can establish that the drugs to be used will cause pain to the condemned, these judges will conclude—and you cannot prove that they’ll cause pain because you have no right to demand that state officials share information about the drugs with you.
Oklahoma law is Oklahoma law and the state is entitled to foster and tolerate the sort of judicial dissonance we see here. The truth is that both courts make reasonable arguments. Death penalty cases, and the means of execution, are inherently "criminal" proceedings. But inasmuch as the defense lawyers here are not challenging the convictions and sentences of their clients, they are making arguments that traditionally have sounded in "civil" courts. The conflict today is about secrecy and transparency—not guilt or innocence or crime or punishment.
And it's also about the nature of the judicial process in capital cases. Both high appellate courts in Oklahoma ought to be required to agree before an execution there can proceed. Either court ought to be willing to ensure that the other court is satisfied that no state constitutional violation will occur. But if the Court of Criminal Appeals has its way, these two men will be executed before the state Supreme Court even has all of the briefs filed in their appeals. That surely can't be what Oklahoma intended by splitting its courts.
And that is why no case better illustrates the need for the justices in Washington to intervene in this burgeoning conflict. Not only are different rules now applied in different states to core Eighth Amendment principles, but now we have a state that cannot agree within its own borders about the nature of these new challenges. The United States Supreme Court must not permit these executions to proceed, so long as the state Supreme Court believes the men have raised legitimate issues about the means and manner of the death that awaits them.