Oklahoma Is Planning To Resume Executions With The Same Drugs Used In Botched 2014 Killing

The men Oklahoma is planning to kill are part of an ongoing lawsuit over whether the state’s lethal injection protocol constitutes cruel and unusual punishment.
Illustration: Damon Dahlen/HuffPost, Photos: Getty Images

In April 2014, Clayton Lockett writhed in visible pain as the state of Oklahoma executed him with an injection of three drugs. The execution, a “bloody mess,” the prison warden said at the time, took 43 minutes. The state postponed the execution of Charles Warner, also scheduled for that night, only to kill him less than nine months later. His death came more quickly, but not without pain: “My body is on fire,” he said after being injected with the drugs.

Richard Glossip was supposed to be the next on Oklahoma’s death row to die, in September 2015, but then-Gov. Mary Fallin (R) halted the execution at the last minute because the corrections department had the wrong combination of drugs. A subsequently released autopsy report revealed that executioners had, in fact, used the wrong drug to put Warner to death.

The series of high-profile screw-ups prompted lawsuits and investigations into the state’s lethal injection protocol, resulting in a yearslong moratorium on executions in the state that has the third-highest body count.

But now Oklahoma is preparing to kill again. On Thursday afternoon, the U.S. Supreme Court vacated a legal stay allowing the state to move forward with the scheduled execution of John Marion Grant, who suffered extreme neglect and abuse as a child. He will be killed with a lethal injection of midazolam, vecuronium bromide and potassium chloride — the same combination of drugs used on Lockett — as punishment for the 1998 killing of Gay Carter, a woman who worked at the prison where he was incarcerated at the time.

The seven individuals the state is preparing to execute — John Marion Grant, Julius Jones, Bigler Stouffer, Wade Lay, Donald Grant, Gilbert Postelle and James Coddington — do not represent the worst of the worst. Rather, their cases are marked by issues that are prevalent on death row: severe untreated mental illness, abusive childhoods, racism in the judicial system, extreme poverty, ineffective assistance of counsel and claims of innocence.

There is ongoing litigation over whether Oklahoma’s method of execution violates the Eighth Amendment’s protection against cruel and unusual punishment. Last year, Mike Hunter, then the state attorney general, promised not to schedule executions while litigation was ongoing. But in August, U.S. District Judge Stephen Friot dismissed six of the plaintiffs, citing a grim legal technicality: During litigation, the six men declined to specify their preferred alternative method of execution, mostly citing ethical and religious objections to facilitating their own deaths.

Had they done so, it’s unlikely any of them would be facing execution dates. Oklahoma Attorney General John O’Connor, who replaced Hunter in July, quickly sought executions for those six, plus a seventh man who was never a party to the lawsuit. The six plaintiffs have since been reinstated to the litigation, but the state is pushing forward with the executions anyway.

On Monday, Judge Friot declined a request to halt several executions until after the conclusion of the litigation. On Wednesday, an appellate court granted a stay for John Marion Grant and Jones, the two men whose execution dates are most imminent. The state appealed the matter to the U.S. Supreme Court, which vacated the two stays.

“Injustice does not even describe what would result if these plaintiffs are executed and the federal court later decides that the current Oklahoma protocol is unconstitutional,” Dale Baich, a federal public defender representing the plaintiffs in the lethal injection litigation, told HuffPost ahead of the Supreme Court’s decision. “The executions could not be undone.”

If John Marion Grant’s execution goes forward on Thursday, his death may be used as evidence for the lawsuit, which is headed for a trial. But it’s possible that any pain Grant would suffer would be invisible to witnesses. Days before his execution date, lawyers representing the plaintiffs asked the court to order the omission of the paralytic drug from Grant’s injection in order to preserve evidence of “the physical manifestation of pain and suffering” during the killing. Friot, the same judge who dismissed Grant from the litigation for failing to specify how he wanted to die, denied the request.

“Injustice does not even describe what would result if these plaintiffs are executed and the federal court later decides that the current Oklahoma protocol is unconstitutional.”

- Dale Baich, federal public defender

Lockett, whose 2014 botched execution is now seared into public consciousness, likely knew that his death could be excruciatingly painful. In a bid to save his life, his lawyers had argued as much in court.

“After all the litigation we did, there was no way to assure him that this wasn’t going to be a very painful, torturous experience,” Dean Sanderford, a federal defender who represented Lockett, said in an interview. Just a few months before Lockett’s death, Oklahoma executed Michael Lee Wilson, whose final words were, “I feel my whole body burning.”

The morning of his execution, Lockett made a noose out of his sheets, made several cuts on his arms and swallowed a handful of pills he had been saving. Maybe he was afraid of the way the state planned to kill him. Maybe he wanted to go on his terms. Either way, he survived long enough to be killed.

When guards came to get him, Lockett refused to go, so they used a Taser on him and dragged him from his cell, The Atlantic reported. He was given a medical examination, X-rays and a shower, all so he could be executed a few hours later. No matter what, it was important to keep up the false appearances of a medical operation.

In reality, there is nothing medical about killing someone who wants to live. The American Medical Association’s code of ethics states that as members of a profession dedicated to preserving life, physicians “must not” take part in executions — although some have participated, including at Lockett’s execution.

The various drugs used in executions are selected largely based on what is available rather than what is proved to kill with minimal pain. As pharmaceutical companies become increasingly resistant to having their products used in executions, the details about the source and quality of the drugs are often kept secret, as are the names of those who participate in the killings. Payments are sometimes made in cash to avoid a paper trail. Although proponents of the death penalty claim the process is humane, there is evidence to the contrary. It would be difficult to definitively prove either way, as it would be unethical to run a scientific study to test the question.

Those who are executed often don’t get an autopsy, but many of the autopsies that have been done on those killed by lethal injection show signs of flash pulmonary edema — a condition that can induce excruciating feelings of drowning or suffocating, similar to waterboarding. Because lethal injections often include a paralytic, the individual can be in torturous pain but unable to express it.

In Lockett’s case, an improperly placed intravenous line allowed the drug to seep into his tissue instead of running through his veins. The needle used was more than an inch too short. “Well, we’ll just have to make it work,” the doctor said at the time.

Dozens of people on death row are arguing in court that Oklahoma's use of midazolam, vecuronium bromide and potassium chloride violates the Eighth Amendment's protection against cruel and unusual punishment. The matter is headed to trial.
Dozens of people on death row are arguing in court that Oklahoma's use of midazolam, vecuronium bromide and potassium chloride violates the Eighth Amendment's protection against cruel and unusual punishment. The matter is headed to trial.
Associated Press

In June 2014, shortly after Lockett’s execution, a group of people on death row filed a lawsuit challenging the legality of Oklahoma’s lethal injection protocol. In November, they asked Friot to grant a preliminary injunction and halt the upcoming executions of four of the plaintiffs — Glossip, Warner, Benjamin Cole and John Marion Grant — until the litigation was complete.

Friot denied the request for a preliminary injunction, citing the high burden of proving a likelihood of future success in litigation. He also claimed the men had failed to demonstrate they would “suffer any non-speculative irreparable harm” without a preliminary injunction — a puzzling way to describe individuals facing death. The case made its way to the U.S. Supreme Court, where, in a 5-4 decision, justices allowed the executions to go forward. Warner, the man who cried out that his body was on fire, was executed later that day.

The next week, the Supreme Court agreed to hear the challenge to Oklahoma’s lethal injection protocol. Although it takes five justices to block an execution from going forward, it only takes four to agree to hear a case. Oklahoma’s then-attorney general, Scott Pruitt, asked the Supreme Court to stay the executions of the other three men with execution dates, and the court agreed — a decision that came two weeks too late for Warner.

In June 2015, the Supreme Court issued another 5-4 decision, allowing the three executions to go forward. In a lengthy dissent, Justice Stephen Breyer described how he had come to believe that the death penalty “likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’”

As the lawyers for the group on death row pushed forward with litigation on the constitutionality of the lethal injection protocol, one of the plaintiffs came within hours of being killed. On Sept. 15, Glossip’s execution was postponed to allow time to hear new evidence of his innocence. Two weeks later, his execution was again called off at the last minute when Fallin, the governor, realized the corrections department had the wrong drug. The next day, Pruitt asked an appeals court to indefinitely halt executions for Glossip, John Marion Grant and Cole.

Days later, Warner’s autopsy report was made public, revealing that he had been executed with the wrong drug earlier that year. Pruitt convened a grand jury investigation into the drug issues in Warner’s and Glossip’s cases. The lethal injection litigation was put on pause. The state agreed not to schedule executions until the completion of various investigations and until five months after putting a new execution protocol in place.

The grand jury issued a report the following year finding that state officials were “negligent,” “careless” and “reckless” in preparing for the executions. According to the report, the governor’s general counsel, Steve Mullins, pushed for Glossip’s execution to proceed even though they had the wrong drug, claiming the two drugs were basically the same. Besides, Mullins had argued, it would look bad to call off Glossip’s execution because of the drug issue since that drug had already been used on Warner.

Over the next several years, state officials proposed various ways to resume executions, including using nitrogen gas. It had become so difficult to get lethal injection drugs, Department of Corrections Director Joe Allbaugh said in 2018, that he was forced to deal with “seedy individuals” in an effort to replenish the state’s supply.

In February 2020, Oklahoma unveiled its new execution protocol — but it was alarmingly similar to the old one. The state claimed it had added more “checks and balances” to the execution process, but the three-drug combination was the same as what was last used on Lockett: midazolam as a sedative, vecuronium bromide as a paralytic and potassium chloride to stop the heart.

The plaintiffs on death row and their lawyers quickly moved to resume the lethal injection litigation that had been paused in 2015. During a hearing in May 2020, Friot stated that he had received recent assurances from Hunter, the attorney general at the time, that the state would not seek execution dates until the reopened case was completed.

According to the Supreme Court, for this kind of lethal injection challenge to succeed, the individual has to not only show that the protocol in use is unconstitutional but also offer an available alternative. In a court filing that the plaintiffs signed on to, lawyers offered four alternative methods of execution, but the judge instructed each plaintiff to affirmatively indicate their preferences. Six of the plaintiffs declined to do so; most of them cited religious or ethical objections to facilitating their own deaths. One later said he did not intend to decline an alternative method.

Last August, Friot ruled that the case could proceed to trial — but dismissed the six plaintiffs who did select their alternative method of execution from the case. The state took advantage of the judge’s move and scheduled execution dates for the six individuals whose status in the lawsuit was in question, plus Stouffer, who was not a part of the lawsuit. Stouffer said in a court filing earlier this month that he wanted to be a part of the lethal injection lawsuit and is currently challenging the constitutionality of the lethal injection protocol in his own suit.

U.S. District Court for the Western District of Oklahoma

In a footnote, Friot appeared to welcome the idea that the six dismissed plaintiffs could serve as human test subjects to help determine whether Oklahoma’s lethal injection protocol is cruel and unusual. “Because ... six of the plaintiffs in the case at bar have declined to proffer an alternative method of execution, there may well be a track record ... of the new Oklahoma protocol by the time this case is called for trial as to the other twenty-six plaintiffs,” the judge wrote.

The six men have since been reinstated in the case, but the state has refused to withdraw the execution dates — a violation of last year’s promise not to seek executions while litigation continued. The state attorney general’s office did not respond to a request for comment.

On Monday, Friot refused to block the executions of John Marion Grant and several others from going forward. The U.S. Court of Appeals for the 10th Circuit partially overturned that decision, granting stays for Grant and Jones, whose execution dates are most imminent. There is “nothing in the relevant case law that specifically requires a prisoner to designate a method of execution to be used in his case by ‘checking a box’ when the prisoner has already identified in his complaint the very same alternative methods given as choices on the form,” the appellate panel said.

But the Supreme Court apparently disagreed. In a partisan vote, the court vacated the two stays on Thursday afternoon, shortly before Grant’s execution was scheduled to begin. Justices John Roberts, Clarence Thomas, Samuel Alito, Brett Kavanaugh and Amy Coney Barrett voted to vacate the stays; Justices Breyer, Elena Kagan and Sonia Sotomayor dissented; and Justice Neil Gorsuch did not take part in the decision. The court did not publish an opinion explaining its decision.

The court’s decision cleared the way for Oklahoma to kill Grant using the same combination of drugs that has created a painful death for others. His execution will take place while the courts continue litigating whether his manner of death violates his constitutional protections against cruel and unusual punishment.

And he won’t be the first. When Warner died days before a court decision that would have spared his life, at least for a time, one of the last things he said was, “No one should go through this.”

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