Oklahoma Approves of New Nitrogen Gas Execution Method

March 14, 2018
By David Lee

OKLAHOMA CITY (CN) – Oklahoma officials announced Wednesday the end of a three-year-old moratorium on executions as they plan on using a first-of-its-kind nitrogen gas inhalation method to get around difficulties in getting lethal injection drugs.

Oklahoma Attorney General Mike Hunter and Oklahoma Department of Corrections Director Joe Allbaugh told reporters how “inert gas inhalation” was selected after “many hours of conversations with stakeholders” on the issue, including attorneys and lawmakers. The new execution protocol would result in a condemned inmate dying from hypoxia as the nitrogen gas denies them of oxygen in the death chamber.

“We have selected this method because of the well-documented fact that states across the country are struggling to find the proper drugs to perform lethal injections,” Hunter said at a press conference. “Trying to find alternative compounds or a prescribing authority willing to provide us drugs is becoming exceedingly difficult. We will not try to obtain the drugs illegally.”

Hunter said the state is going with nitrogen gas under a 2015 state law that allows for it if lethal injections have been ruled unconstitutional or if the drugs become unavailable.

Hunter cited comments by U.S. Supreme Court Justice Samuel Alito, who said death penalty opponents are committing “guerilla war” in making it impossible for states to get execution drugs for lethal injections. Death penalty opponents have successfully appealed to drug makers in recent years to stop making and selling the drugs to states for use in executions. States responded by approving replacement execution drugs provided by smaller compounding pharmacies.

Allbaugh said another deterrent for lethal injections is how inmates have dehydrated themselves in the past to make it difficult for the medical staff to carry them out.

Hunter added that the use of nitrogen gas would be “effective, simple to administer, easy to obtain and require no complex medical procedures.”

Wednesday’s announcement comes two years after an Oklahoma grand jury recommended the use of nitrogen gas after it declined to charge state officials for the botched 2015 execution of Charles Warner due to the wrong drugs being used. The state’s execution protocol at the time required potassium chloride to stop the heart, not the potassium acetate that was used. A convicted child-killer, Warner said his body was “on fire” and he twitched from his neck three minutes after the injection began. He died after 18 minutes. Warner’s execution was the last before the death penalty moratorium was imposed. The execution of Richard Glossip eight months after Warner’s execution was halted at the last minute by Gov. Mary Fallin when it was discovered the wrong drugs would be used again.

Warner’s was the first execution in the state after the grisly botched execution of Clayton Lockett in April 2014. Witnesses say Lockett writhed in apparent agony, clenched his teeth and strained to lift his head after being injected with replacement drugs. The execution chamber was described as a gruesome “bloody mess” by execution team members due to attempts at tapping a second intravenous line in Lockett’s groin. The execution was quickly halted and officials drew the blinds on the execution chamber, but Lockett died 20 minutes after that.

The bipartisan Oklahoma Death Penalty Review Commission formed after the Glossip debacle recommended in April 2017 the continuation of the then two-year-old moratorium on executions, citing “disturbing” findings that had its members questioning if executions of innocent people are prevented. The commission said the ban should stay until “significant reforms” are put in place to counteract “the volume and seriousness of the flaws” in the state’s capital punishment system.

Dale Baich, a federal public defender who represents several Oklahoma death row inmates, called Wednesday for complete transparency in the new execution method. He questioned if experts on nitrogen hypoxia would be brought in by the state, or if the state has conducted research on the “safety and legality” of the proposal.

“Instead of following the recommendations of the bipartisan Oklahoma Death Penalty Review Commission, the Department of Corrections chooses to take its own course by adopting an entirely new method of execution by nitrogen hypoxia,” Baich said in a written statement. “This method has never been used before and is experimental.  Oklahoma is once again asking us to trust it as officials ‘learn-on-the-job,’ through a new execution procedure and method. How can we trust Oklahoma to get this right when the state’s recent history reveals a culture of carelessness and mistakes in executions?”

Baich said the commission recognized “the most humane and effective” execution method as being a one-drug barbiturate lethal injection.

Oklahoma is not the only state exploring alternative execution methods due to the shortage of lethal injection drugs. The South Carolina Senate passed a measure last week that requires condemned inmates to die in the electric chair instead. Since 1995, inmates were given the choice between lethal injection or the electric chair. Proponents successfully argued that inmates who chose lethal injections, an option that cannot be carried out, would be effectively getting a life sentence. The measure is expected to become law when it makes it out of the South Carolina House of Representatives’ judiciary committee for a full vote.

From Courthouse News.

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Panel Urges Continued Ban on Oklahoma Death Penalty

April 25, 2017
By David Lee

OKLAHOMA CITY (CN) – A bipartisan commission unanimously recommended Tuesday that Oklahoma continue with its two-year-old moratorium on the death penalty, citing “disturbing” findings that had its members question if executions of innocent people are prevented.

Headed by former Gov. Brad Henry, the 11-member Oklahoma Death Penalty Review Commission was formed shortly after current Gov. Mary Fallin stayed the execution of Richard Glossip in October 2015. She halted all executions after prison officials discovered they had the wrong execution drugs. They received potassium acetate as part of the state’s new, replacement three-drug execution protocol, but potassium chloride was supposed to be used.

States were forced in recent years to seek replacement execution drugs from compounding pharmacies after death-penalty opponents persuaded large drug manufacturers to stop making execution drugs.

“The Commission did not come to this decision lightly,” the 294-page report states. “Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.”

The commission cites the U.S. Supreme Court’s emphasis of the death penalty being for the “worst of the worst” criminals.

“Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions,” the report states. “These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.”

The report makes sweeping recommendations at every stage of the criminal justice system: from evidence gathering to the role of the judiciary to the roles of defense attorneys and prosecutors. It recommends amendments to the Oklahoma Uniform Jury Instructions to direct jurors to consider expert testimony on “the limitations and use of eyewitness testimony” in death penalty cases.

It recommends police use “double-blind” procedures when conducting photograph or live lineups. The commission further suggests more training of police, prosecutors and defense attorneys on the limitations of eyewitness identification in such cases. It recommends the Oklahoma Bar Association provide more training to defense, trial and appellate attorneys to handle the “unique demands” of capital cases.

In a press conference at the Oklahoma Capitol, commission members said there were “significant differences” of opinion among commission members as to the validity of the death penalty itself, but that the recommendation to continue the moratorium was unanimous.

Henry said the “obvious answer” as to why the death penalty is so flawed is because of a lack of resources, that attorneys for indigent defendants have overwhelming case loads and do not have the money for investigators or expert witnesses.

Henry told reporters it was likely Oklahoma had executed an innocent person, alluding to several exonerations since the death penalty was reinstated four decades ago.

Death-row inmates Glossip and Benjamin Cole had sued the state in 2014, arguing the first drug in Oklahoma’s execution protocol, midazolam, fails to render a person insensate to pain in violation of the Eighth Amendment. They sued after the gruesome, botched execution of Clayton Lockett in April 2014.

Lockett was declared unconscious after being injected with midazolam, but breathed heavily, writhed, clenched his teeth and strained to lift his head off a pillow three minutes later. Medical team members told investigators the death chamber was a “bloody mess” due to difficulty tapping a second femoral intravenous line to inject the drugs and that “blood squirted up and got all over” a doctor.

Oklahoma Department of Corrections Director Robert Patton ordered the execution stopped, but it took Lockett 43 minutes to die of a heart attack anyway. Prison officials later blamed the botched execution on the first intravenous line in Lockett’s groin being placed incorrectly and then covered with a sheet.

Further doubt was cast on future executions when it was revealed in October 2015 that potassium acetate was incorrectly used in the execution of Charles Warner, who said “my body is on fire” as he was injected.

An Oklahoma grand jury in May 2016 declined to charge state officials over the error in Warner’s execution, but criticized them for being “careless” in using the wrong drugs. It also recommended the state look into using nitrogen gas to executed inmates in the future.

From Courthouse News.

Grand Jury Lashes Okla. On Botched Execution

May 20, 2016
By David Lee
OKLAHOMA CITY (CN) – An Oklahoma grand jury declined to charge state officials for last year’s botched execution of Charles Warner, but criticized them for being “careless” in using the wrong drugs and recommended that the state kill people with nitrogen gas.
In the report released Thursday evening, the multicounty grand jury called out officials from Gov. Mary Fallin’s office down to members of the execution team.
“The Director of the Department of Corrections orally modified the execution protocol without authority,” the 106-page report states. “The pharmacist ordered the wrong execution drugs, the department’s general counsel failed to inventory the execution drugs as mandated by state purchasing requirements.”
States have been forced to seek replacement execution drugs from compounding pharmacies after death penalty opponents persuaded large drug manufacturers to stop making the drugs. One week ago Pfizer, the last major source of execution drugs, announced that it would no longer supply drugs for executions.
Oklahoma used the wrong drugs in January 2015 to kill Warner, a child-killer. The state’s execution protocol required potassium chloride to stop the heart, not the potassium acetate that was used.
Warner said his body was “on fire” and he twitched from his neck three minutes after the injection began, for seven minutes until he stopped breathing, witnesses said. He died after 18 minutes.
Warner’s was the first execution after the grisly botched execution of Clayton Lockett in April 2014.
Witnesses said Lockett writhed in apparent agony, clenched his teeth and strained to lift his head after being injected with the replacement drugs. Prison officials tried to stop the execution at 20 minutes after running out of drugs.
Execution team members told state investigators that the execution chamber was a gruesome “bloody mess” due to attempts to tap a second femoral intravenous line in Lockett’s groin.
Fallin stopped the execution of Richard Glossip eight months after Warner’s execution, when it was discovered the wrong drugs were to be used again.
The grand jury report says that Fallin’s former general counsel, Steve Mullins, recommended that Glossip be executed using potassium acetate. Mullins resigned in February.
The report cites a conversation Mullins had with Deputy Attorney General Jennifer Mullins to dissuade her from filing a motion to stay the execution.
“During this conversation, the governor’s general counsel stated potassium chloride and potassium acetate were basically one in the same drug, advising Deputy Attorney General Miller to ‘Google it,'” the report states.
“The governor’s general counsel also told Deputy Attorney General Miller that filing a motion to stay would look bad for the State of Oklahoma because potassium acetate had already been used in Warner’s execution.”
To avoid such confusion, the report recommends the state hire experts to explore executions by nitrogen hypoxia. The grand jury heard testimony that such executions “would be humane” and that the components needed would be “easy and inexpensive” to get.
“The scientific research regarding nitrogen hypoxia has shown this method of execution would be quick and seemingly painless,” the report states. “In addition to scientific research, Professor A explained that high-altitude pilots who train to recognize the symptoms of nitrogen hypoxia in airplane depressurizations do not report any feelings of suffocation, choking, or gagging. Doctor A testified that a person in a nitrogen-induced hypoxic state would lose consciousness quickly, and the heart would cease to beat within a few minutes. At present, however, no state has implemented the death penalty through nitrogen hypoxia, although it is an approved method of execution in Oklahoma.”
The grand jury report was requested by Attorney General Scott Pruitt, who said, “This must never happen again.”
“Today, I regret to advise the citizens of Oklahoma that the Department of Corrections failed to do its job,” Pruitt said in a statement. “As is evident in the report from the multicounty grand jury, a number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred.”
Pruitt said he will work with Fallin and the Legislature to study the nitrogen hypoxia recommendation.

From Courthouse News.

Oklahoma Cuts Deal to Hold Off on Inmates’ Executions

October 16, 2015
By David Lee
OKLAHOMA CITY (CN) – Oklahoma cut a deal with three death row inmates to delay their executions into 2016 while officials investigate why the wrong drug was provided for the halted execution of Richard Glossip.
Glossip, James Coddington and Benjamin Cole sued the state in Oklahoma City Federal Court last year, claiming the use of midazolam – the first drug in a new three-drug replacement protocol – fails to render a person insensate to pain, in violation of the Eighth Amendment.
Oklahoma changed its execution drug protocol after the botched execution of convicted murderer Clayton Lockett, 38, in April 2014. Lockett was declared unconscious after being injected with midazolam but breathed heavily, writhed, clenched his teeth and strained to lift his head off a pillow three minutes later.
A failed attempt to tap a vein in Lockett’s groin resulted in blood gruesomely spraying the execution chamber. Blinds separating a viewing gallery and the chamber were lowered and Oklahoma Department of Corrections Director Robert Patton ordered the execution stopped. It took Lockett 43 minutes to finally die of a heart attack.
Several states have been forced to seek replacement execution drugs from compounding pharmacies after anti-death penalty opponents persuaded large drug manufacturers to stop making lethal injection drugs.
Glossip was most recently scheduled to die on Sept. 30, when Gov. Mary Fallin abruptly halted the execution with minutes to spare after prison officials discovered they had incorrectly received potassium acetate as the third drug in the state’s three-drug execution protocol instead of potassium chloride. Attorney General Scott Pruitt immediately launched in an inquiry into the mishap.
In light of the investigation, Pruitt asked the Oklahoma Court of Criminal Appeals on Oct. 1 to halt all pending executions. On Friday, the inmates’ attorneys agreed to administratively end their lawsuit in exchange for the state putting off their executions into next year.
Pruitt said his office is conducting a “full and thorough investigation into all aspects” of prison officials’ handling of the executions.
“My office does not plan to ask the court to set an execution date until the conclusion of its investigation,” he said in a statement Friday. “This makes it unnecessary at this time to litigate the legal questions at issue in Glossip v. Gross.”
Under the deal, the state agrees not to seek execution dates without informing the inmates of any conducted investigations and without providing notice that prison officials will be able to expressly comply with the execution protocol. Oklahoma also agreed not to seek execution dates until at least 150 days after the inmates are provided such information.
The inmates will then have 30 days after moving to reopen their lawsuit by filing a second amended complaint.
Glossip’s attorney, federal public defender Dale A. Baich in Phoenix, said Friday he expects Pruitt’s investigation “will take some time.”

From Courthouse News.

Report: Oklahoma Used Wrong Drug to Kill Man

October 12, 2015
By David Lee
OKLAHOMA CITY (CN) – Oklahoma Gov. Mary Fallin expressed frustration and doubt about the future of executions in her state after the disclosure that an incorrect drug was used to kill child-killer Charles Warner.
The Oklahoman reported on Oct. 8 that bottles labeled potassium acetate were incorrectly used in the state’s three-drug cocktail to kill Warner in January. The state’s execution protocol requires that potassium chloride be used third to stop the heart.
Warner showed no obvious signs of distress as the first drug was administered, but said, ” My body is on fire.”
Witnesses said Warner twitched from his neck 3 minutes after the injection began, lasting for seven minutes until he stopped breathing. He died after 18 minutes.
The incorrect third drug was provided to prison officials again for the Sept. 30 execution of Richard Glossip. The error was discovered before the execution, and Fallin stayed the execution with minutes to spare. Attorney General Scott Pruitt investigated and quickly asked the Oklahoma Court of Criminal Appeals to halt three pending executions .
“During the discussion of the delay of the execution, it became apparent that Department of Corrections may have used potassium acetate in the execution of Charles Warner in January of this year,” Fallin said at an Oct. 8 news conference. “I was not aware, nor was anyone in my office aware of the possibility, until the day of Richard Glossip’s scheduled execution.”
Fallin said the pharmacy that provided the potassium acetate assured prison officials that it is medically interchangeable with the approved potassium chloride. But she sided with Pruitt’s request to stop executions until his investigation is complete.
“The attorney general, the Department of Corrections and my office will work cooperatively to address these issues,” Fallin said. “Until we have complete confidence in the system, we will delay any further executions.”
States have been forced to seek replacement execution drugs from compounding pharmacies after death penalty opponents persuaded large drug manufacturers to stop making the drugs.
Warner unsuccessfully argued in Federal Court that the state’s replacement three-drug execution protocol would subject him to unconstitutional pain and suffering.
Oklahoma officials updated the execution protocol in September 2014, greatly increasing the dose of midazolam. The change came after Fallin ordered an investigation of the botched execution of Clayton Lockett in April 2014.
Witnesses said Lockett writhed in apparent agony, clenched his teeth and strained to lift his head after being injected with the replacement drugs. Prison officials tried to stop the execution at 20 minutes after running out of execution drugs. Execution team members told state investigators that the execution chamber was a gruesome “bloody mess” due to attempts to tap a second femoral intravenous line in Lockett’s groin.
Glossip’s attorney, federal defender Dale Baich, blasted the latest revelations, saying Oklahoma cannot be trusted to “get it right” or be truthful.
“The state’s disclosure that it used potassium acetate instead of potassium chloride during the execution of Charles Warner yet again raises serious questions about the ability of the Oklahoma Department of Corrections to carry out executions,” Baich said. “The execution logs for Charles Warner say that he was administered potassium chloride, but now the state says potassium acetate was used.”
The execution logs state Warner was given drugs from syringes labeled potassium chloride, according to media reports. This contradicts the autopsy report, which indicates the syringes contained potassium acetate.

From Courthouse News.

Execution Drug Error Prompts More Execution Stays in Oklahoma

October 1, 2015
By David Lee
OKLAHOMA CITY (CN) – One day after Oklahoma’s abrupt halt of Richard Glossip’s execution due to the discovery of incorrect drugs, the state has asked to indefinitely halt all executions until the mistake is straightened out.
Gov. Mary Fallin stayed Glossip’s execution until Nov. 6 after prison officials received potassium acetate as the third drug in the state’s three-drug execution protocol – potassium chloride is usually used.
Attorney General Scott Pruitt said Thursday he has launched an inquiry into the mishap.
“The state owes it to the people of Oklahoma to ensure that, on their behalf, it can properly and lawfully administer the sentence of death imposed by juries for the most heinous crimes,” he said in a statement. “Not until shortly before the scheduled execution did the Department of Corrections notify my office that it did not obtain the necessary drugs to carry out the execution in accordance with the protocol. Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions.”
Pruitt said he is “mindful” of the suffering of victim’s families in the cases and his heart “breaks” for them.
“Yet they deserve to know, and all Oklahomans need to know with certainty, that the system is working as intended,” he said.
Filed with the Oklahoma Court of Criminal Appeals on Thursday, the two-page request to stay all executions said time is needed to evaluate a drug being provided that was contrary to both protocol and prison officials’ internal protocol procedures.
“The state has a strong interest in ensuring that the execution protocol is strictly followed,” the filing said.
Pruitt is asking the court to halt Glossip’s Nov. 6 execution, Benjamin Cole’s Oct. 7 execution and John Grant’s Oct. 28 execution. execution. Oklahoma’s execution protocol is key because Glossip and three other death row inmates sued the state last year, claiming its use of midazolam – the first drug in a new three-drug replacement protocol – fails to render a person insensate to pain, in violation of the Eighth Amendment.
States have been forced to seek replacement execution drugs from compounding pharmacies after anti-death penalty opponents persuaded large drug manufacturers to stop making lethal injection drugs.
Oklahoma’s previous protocol required pentobarbital to knock the inmate unconscious, vecuronium to stop breathing and potassium chloride to stop the heart.
Glossip’s lawsuit was filed after the botched execution of murderer Clayton Lockett, 38, in April 2014.
Lockett was declared unconscious after being injected with midazolam, but breathed heavily, writhed, clenched his teeth and strained to lift his head off a pillow three minutes later. Blinds separating a viewing gallery and the death chamber were lowered and Oklahoma Department of Corrections Director Robert Patton ordered the execution stopped.
It took Lockett 43 minutes to die of a heart attack.
In a 5-4 ruling on June 29, the U.S. Supreme Court upheld the new execution protocol and Oklahoma quickly rescheduled four executions, including Glossip’s. The high court said the inmates failed “to identify a known and available alternative method of execution that entails a lesser risk of pain.”

From Courthouse News.

Oklahoma Inmate’s Execution Again Stalled at 11th Hour

September 30, 2015
By David Lee
OKLAHOMA CITY (CN) – Bowing to intense pressure from anti-death penalty activists and Pope Francis, Oklahoma Gov. Mary Fallin halted the execution of convicted murdered Richard Glossip at the last minute over concerns about the execution drug.
Glossip was scheduled to die at 3 p.m. Wednesday for hiring a man to murder his employer, Barry Allan Van Treese, in 1997. Glossip has always insisted he is innocent.
Fallin halted the execution after prison officials received potassium acetate as the third drug in the state’s three-drug execution protocol – potassium chloride is usually used.
“This stay will give the Department of Corrections and its attorneys the opportunity to determine whether potassium acetate is compliant with the execution protocol and/or to obtain potassium chloride,” the one-page order states. “The execution of Richard Eugene Glossip is therefore scheduled for Friday, November 6, 2015.”
Fallin has faced harsh criticism for several months for refusing to stop Glossip’s execution. Academy Award-winning actress Susan Sarandon called the governor a “horrible person” in August for refusing to intervene.
Fallin’s spokesman Alex Weintz fired back, saying at the time the governor does not have the ability to grant Glossip clemency.
“The limit of her legal ability to intervene is to grant a 60 day stay,” Weintz tweeted. “The gov[ernor] can only grant clemency [to] inmates who have been recommended clemency by the Pardon and Parole Board. Glossip’s request was unanimously denied … To say Glossip has had his day in court is an understatement. He has been pursuing the same arguments publicly and in court for 20 years. He was convicted of murder in court twice and sentenced to death twice by two juries (24 total jurors unanimous in their verdict).”
Even if Fallin could grant clemency, doing so would “unilaterally overturn” the judgments of jurors and several courts, including the 10th Circuit and U.S. Supreme Court, Weintz said.
Fallin’s change of mind came after the Oklahoma Court of Criminal Appeals declined Monday to halt the execution for a second time. It stopped the execution scheduled for Sept. 16 to consider new, last-ditch evidence of guilt filed by Glossip’s attorneys.
Glossip claimed hit man and star prosecution witness Justin Sneed allegedly bragged to other inmates that he set Glossip up.
“Sneed has bragged that, in order to escape the death penalty, he lied about Mr. Glossip’s involvement in the case and that Mr. Glossip was not involved,” the filing stated. “He also stated he wishes to recant but fears getting the death penalty himself.”
Glossip’s attorneys said Sneed killed Van Treese by himself, that he was “desperate” for drugs.
“Justin Sneed, contrary to the meek youngster he was portrayed to be at trial, was a severe, thieving methamphetamine addict,” the filing stated. “He stole guns and other personal belongings out of cars in the parking lot of the motel where the crime occurred – and out of occupied motel rooms – and traded what he stole for methamphetamine.”
Glossip’s attorneys argued their client “would be acquitted at trial today” in light of the new evidence.
Minutes before Fallin’s order stopped the execution, the U.S. Supreme Court declined Glossip’s application for stay. Seemingly resigned to his fate, Glossip said he was “happy to be alive” but prepared for death.
“I don’t want to be a martyr and I don’t want to die,” Glossip said in a statement. “Believe me, I want to live, but if my death would stop anyone else from having to go through what I went through for 18 years, I’d be more than happy to die for them.”
Glossip and three other death row inmates sued Oklahoma last year, claiming its use of midazolam – the first drug in a new three-drug replacement protocol – fails to render a person insensate to pain, in violation of the Eighth Amendment.
States have been forced to seek replacement execution drugs from compounding pharmacies after anti-death penalty opponents persuaded large drug manufacturers to stop making lethal injection drugs. Oklahoma’s previous protocol required pentobarbital to knock the inmate unconscious, vecuronium to stop breathing and potassium chloride to stop the heart.
Glossip’s lawsuit was filed after the botched execution of murderer Clayton Lockett, 38, in April 2014. He was declared unconscious after being injected with midazolam, but breathed heavily, writhed, clenched his teeth and strained to lift his head off a pillow three minutes later. Blinds separating a viewing gallery and the death chamber were lowered and Oklahoma Department of Corrections Director Robert Patton ordered the execution stopped.
It took Lockett 43 minutes to die of a heart attack.
In a 5-4 ruling on June 29, the U.S. Supreme Court upheld the new execution protocol and Oklahoma quickly rescheduled four executions, including Glossip’s. The high court said the inmates failed “to identify a known and available alternative method of execution that entails a lesser risk of pain.”

From Courthouse News.