Federal Court in Oklahoma to hold May 5 hearing on return to “risky and incomplete” lethal injection protocol used in previous botched executions

Oklahoma City  – On Tuesday, May 5 at 1:30 p.m., a federal district court will hear Glossip, et al., v. Gross, in which attorneys will argue whether the state of Oklahoma provided an incomplete execution protocol on February 13. At that time, state officials announced that it would use the same three drug cocktail that was used five years ago in the two botched executions in Oklahoma.

Judge Stephen P. Friot will preside over the hearing at the United States District Court for the Western District of Oklahoma, William J. Holloway, Jr. United States Courthouse, 200 NW 4th Street, Courtroom 401, in Oklahoma City.

The new protocol  (http://city-sentinel.com/2020/02/attorneys-challenge-oklahomas-proposed-return-to-risky-and-incomplete-lethal-injection-protocol/)
retains the use of midazolam in a three-drug protocol, which has contributed to a number of problematic executions across the country, including the execution of Charles Lockett.

Attorneys representing Oklahoma death row prisoners contend that “the protocol lacks the details about execution personnel training necessary to assess whether the revised protocol addresses the issues that led to the use of an unauthorized drug in the execution of Charles Warner (January 15, 2015), which was almost repeated before Richard Glossip’s execution (September 30, 2015) was halted at the last minute.

The state disclosed in October 2015 that the wrong drug (https://apnews.com/f7fe7d5b76cd4a12a2e00e8f929520fb/report-oklahoma-used-wrong-drug-january-execution) was used in Warner’s execution, in contravention of the state’s lethal injection protocol.

A November 2015 poll by The Oklahoman (https://oklahoman.com/article/5461486/new-poll-shows-more-than-half-of-oklahomans-support-life-sentences-over-the-death-penalty?) found 
that over half of Oklahomans supported the state’s moratorium on carrying out executions.

In March 2016, a bipartisan group of prominent Oklahomans formed the Oklahoma Death Penalty Review Commission (https://www.courthousenews.com/wp-content/uploads/2017/04/OklaDeathPenalty.pdf). According to The City Sentinel (http://city-sentinel.com/2016/03/bipartisan-death-penalty-review-commission-formed-supported-in-oklahoma/), an independent newspaper based in Oklahoma City, the Commission was to conduct “the first-ever independent, objective and thorough review of the state’s entire capital punishment system.” The City Sentinel endorsed then, and has repeated since then, the moratorium on executions.

The death row prisoners’ previous litigation challenging Oklahoma’s lethal injection protocol was administratively closed in 2015 pursuant to a Joint Stipulation (https://drive.google.com/file/d/0B1LFfr8Iqz_7TkltcUJqczd6Nkk/view) between the prisoners and the state.

At the hearing this coming Tuesday (May 5), attorneys for the prisoners will argue that the state’s “Notice of Protocol” (https://drive.google.com/file/d/1s9DtU1R18SlpNqkRlPQp0lqEa0ot8j7G/view), does not comply with the 2015 Joint Stipulation.

Among the concerns, attorneys will argue that Oklahoma Department of Corrections has not provided specific protocols and training for staff carrying out executions, denying prisoners “a full and fair opportunity to address all constitutional issues.” (Reply Brief, page 9 – https://drive.google.com/file/d/11HNNhxes8g4S0d4cOVzyPK0mOoouFQiZ/view). 

As the Reply Brief notes, death row prisoners “should not be subject to execution by surprise.”  Prisoners will further argue the Department of Corrections has not provided satisfactory notice that it can comply with the express terms of the execution protocol to ensure humane and constitutional executions in the future.

“Transparency and careful judicial review are the only ways to ensure humane, constitutional executions,” said Federal public defender Dale Baich, one of the attorneys for the death row prisoners. “But the courts cannot review procedures that don’t exist, and Oklahoma’s new protocol has a placeholder promising future plans where the plans should be. Rather than articulate substantive training requirements and other necessary procedures, the state’s Notice essentially says, ‘We’ll get around to that. Trust us.’

To attend the hearing, check the court website (http://www.okwd.uscourts.gov/) for the most current information about COVID-19.

Editor’s Note: It has been some time since a CapitolBeat compilation of citations for this important case. Adapted from reporting for The City Sentinel, helpful links for this matter include:

* Death Row Plaintiffs’ Motion to Reopen Action Which Was Administratively Closed (Filed February 27, 2020) can be accessed here: (https://drive.google.com/file/d/1SgBeFSfVMoihczeSiEFbvfoDgXmogWfd/view). 

* Death Row Plaintiffs’ Motion to Enforce (https://drive.google.com/file/d/10vTDzIkKkfahvlPugbu4653HfCzFDBPy/view) the Terms of the Court’s Order Granting Joint Stipulation (Filed March 12, 2020).

* Oklahoma’s Response to Plaintiffs’ Motion (https://drive.google.com/file/d/1vO5A8uSjm2UNx6i-k2BiC3Jb95St5Vxu/view) to Enforce the Terms of the Court’s Order Granting Joint Stipulation (Filed April 2, 2020).

* The Death Row Plaintiff’s Reply (https://drive.google.com/file/d/11HNNhxes8g4S0d4cOVzyPK0mOoouFQiZ/view) in Further Support of Their Motion to Enforce the Terms of the Court’s Order Granting Joint Stipulation (Filed April 9, 2020):

For more information, contact Tristin Aaron, Deputy Director at Capital Litigation Communications Project, at 718-938-4078 or tristinaaron@gmail.com.