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Oklahoma law allowing execution drug secrecy ruled unconstitutional Oklahoma law allowing execution drug secrecy ruled unconstitutional
(about 5 hours later)
A judge has ruled the Oklahoma state law making the source of execution drugs a secret is unconstitutional. An Oklahoma judge ruled Wednesday that a state law that makes the source of execution drugs a secret is unconstitutional.
Oklahoma county judge Patricia Parrish said the law violates death row inmates' right to access to the courts in order to argue against their own executions. The statute denies even the judge information about execution drugs, she said. Oklahoma county district court judge Patricia Parrish said the law violates death row inmates' right to access to the courts in order to argue against their own executions. The statute denies even the judge information about execution drugs, she said.
"I do not think this is even a close call," Parrish said."I do not think this is even a close call," Parrish said.
Assistant attorney general John Hadden said the state will appeal Wednesday's decision to the Oklahoma supreme court. Attorneys for the death row inmates Charles Warner and Clayton Lockett said they will request a further stay from the Oklahoma court of criminal appeals. Oklahoma assistant attorney general John Hadden said the state will appeal Parrish's decision to the Oklahoma supreme court.
Earlier this month, the criminal appeals court stayed their executions from March 20 and 27 to April 22 and April 29, because the state could not find a supplier for drugs to execute the men. The state then revised its execution protocol to allow other drug combinations in hope of finding attainable drugs in time to kill the men. Earlier this month, the criminal appeals court stayed the executions of the two death row inmates who brought the case, Clayton Lockett and Charles Warner, from March 20 and 27 to April 22 and April 29, because the state could not find a supplier for drugs to execute the men. The state then revised its execution protocol to allow other drug combinations in hope of finding drugs in time to kill the men. Both Warner and Lockett were convicted of rape and murder.
The 2011 law the judge found to be unconstitutional states: “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings."The 2011 law the judge found to be unconstitutional states: “The identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings."
Defense attorneys celebrated the ruling as a step toward shedding light on and adding accountability to the state’s shadowy execution processes. The ruling highlighted a national conversation about the secrecy laws that states have enacted to cover up their suppliers, even as they turn to more experimental combinations of execution drugs in the wake of a decision made by the European nations that had provided federally regulated drugs to stop selling them to the US.
Hadden argued for Oklahoma that the state’s source must be kept confidential for security reasons, citing a threat made to a compounding pharmacy. Hadden did not name the pharmacy aloud in court.
Susanna Gattoni and Seth Day, the attorneys for Warner and Lockett, said it was crucial for the men – and the public – to know the source of the drugs used in an execution in order to ensure that the inmates do not suffer an unconstitutionally cruel and unusual punishment. As the supply of the federally-approved drugs for executions ran out, states turned to compounding pharmacies to produce them. Gattoni argued that Oklahoma had likely used pentobarbital made by a compounding pharmacy in the January execution of Michael Lee Wilson, who said, as he was being put to death: “I feel my whole body burning.”
Hadden said in court that there was no hard evidence Wilson did not intentionally make a scene.
“You think someone is dying and just makes that up?” the judge replied.
Because drugs from compounding pharmacies are less regulated, there is a risk of impurities and contamination that could cause unnecessary suffering to the death row inmates, defense attorneys argued.
Hadden called the threat of contamination a “red herring,” because the drugs are for use in executions, not to better the health of the inmates.
Oklahoma’s new execution protocol released last week allows five different ways to kill inmates by lethal injection; the specific drugs used in a particular execution would be chosen at the discretion of the warden. The state could use four different three-drug methods or a single dose of pentobarbital. One combination in the protocol – midazolam, hydromorphone and potassium chloride – is an experimental three-drug method never used in a United States execution, said Richard Dieter, the executive director of the Death Penalty Information Center in Washington DC.
Ohio used midazolam and hydromorphone in the execution of Dennis McGuire in January, which media reports indicated took longer than 20 minutes.
Oklahoma’s third drug, potassium chloride, was not employed in that execution, and Hadden argued Wednesday that Oklahoma planned to use a larger dose of the first two drugs than Ohio did in McGuire’s execution.
It was unclear what the state would reveal about its drug sources as appeals were pending.
In arguments Wednesday, defense attorneys had entered an exhibit of documents downloaded from an investigation published in The Colorado Independent last week. The judge referred Wednesday to the exhibit as the OU-Texas game documents.
The exhibit showed how Oklahoma assistant attorney generals had joked about the issue of Texas trying to obtain legal advice from other states about execution drugs after Texas had kept a supply of drugs to itself in the past. Assistant attorney general Seth Branham wrote Oklahoma should get sideline passes to a football rivalry and lifetime passes on Texas toll roads in return.
Parrish ruled against Warner and Lockett on other matters before the court. She concluded that the legislature had not given the corrections department too much power to determine the lethal injection procedures. She also ruled against the argument that the execution protocol should have to involve public notice and a public hearing. The Department of Corrections has an exemption to a public rule making procedure.
Lawyers for the two men may appeal those decisions to the Oklahoma supreme court.