Despite a number of botched executions in recent years – which drew widespread criticism for subjecting condemned prisoners to cruel lethal injection practices – Oklahomans have voted to add a provision to the state constitution enshrining and ensuring the state’s ability to put people to death in whatever manner it sees fit.

The constitutional amendment, approved by 67 percent of voters on November 8, 2016, states that “any method of execution shall be allowed, unless prohibited by the United States Constitution,” and that no method of execution employed by the state “[shall be] deemed to be, or constitute, the infliction of cruel or unusual punishments.”

Ironically, as the infliction of “cruel and unusual” punishment is expressly forbidden under the Eighth Amendment of the U.S. Constitution, the Oklahoma amendment appears to be an attempt at self-inoculation on the part of a state plagued with a seeming inability to kill prisoners in a non-cruel and unusual way.

As reported by Al Jazeera in September 2016, drawing on data provided by the Death Penalty Information Center, Oklahoma has executed 112 prisoners since 1990. As such, it is the state with the highest per-capita execution rate, and second in total execution numbers only to Texas. With the November 2016 amendment, Oklahoma became the first state in the nation to codify the death penalty in its constitution.

However, in its pursuit of enforcing the death penalty, the state has made a mess of things. In April 2014, Oklahoma Department of Corrections (ODOC) officials botched the execution of Clayton Lockett, who protractedly writhed on the execution gurney and groaned before finally dying. [See: PLN, Oct. 2015, p.44].

During Lockett’s execution, prison staff restricted what witnesses and the media could see. On August 25, 2014, the ACLU and the ACLU of Oklahoma filed suit against prison officials over their handling of Lockett’s execution. Brought on behalf of The Guardian and the Oklahoma Observer, and two journalists employed by those publications, the lawsuit alleged the ODOC had violated the First Amendment and Oklahoma constitution by denying the public and press the right to witness government proceedings, including public executions.

“Our lawsuit asks the court to recognize the media and other witnesses’ First Amendment right to view executions without interruption, from when the condemned enters the execution chamber until the execution has concluded,” the ACLU explained. “We also ask that the court ensure Oklahoma authorities take steps to protect this right.”

The lawsuit was dismissed by a federal district court in December 2014. See: Oklahoma Observer v. Patton, U.S.D.C. (W.D. Okla.), Case No. 5:14-cv-00905-HE. In the meantime, the ODOC had enacted even more restrictive regulations for media access to executions, cutting the number of media observers from 12 to 5.

In January 2015 the ODOC botched another execution, of prisoner Charles Fredrick Warner. Warner was administered incorrect lethal injection drugs and was quoted as saying “[m]y body is on fire” before dying 18 minutes later. [See: PLN, Sept. 2016, p.52].

The Warner execution led Oklahoma Governor Mary Fallin to order a halt to capital punishment in the state after admitting prison officials used the wrong drugs.

Fallin’s admission followed the release of a report by the state Office of the Chief Medical Examiner that found potassium acetate, not potassium chloride, had been used to put Warner to death, contradicting the official prison execution log. Experts interviewed by the Oklahoman newspaper said that using potassium acetate could significantly lengthen the time it takes to stop a prisoner’s heart and cause his or her death.

Oklahoma uses a three-drug procedure that is intended to render a prisoner unconscious, applying midazolam as a sedative and rocuronium bromide as a paralytic, before injecting potassium chloride to stop the prisoner’s heart. In Warner’s case, medical examiners found that while syringes used in the execution were labeled “potassium chloride,” the vials used to fill the syringes were labeled “single dose Potassium Acetate injection.”

The distinction between the two drugs is significant. The state-mandated potassium chloride is somewhat quickly absorbed by the body, in part because its pH level is considerably lower than that of blood, said Dr. Mohamed Joliah with Creighton University’s Center for Drug Information and Evidence Based Practice. Potassium acetate takes longer to be absorbed and a larger dose of the drug would be needed to achieve the same effect, he stated.

Robert Bachman, a chemistry professor at the University of the South in Tennessee, said failing to account for the difference between the drugs could make the potassium acetate less effective. The Death Penalty Information Center noted that potassium acetate had not been used in any previous execution in the U.S.

Whether the use of the wrong drug delayed Warner’s death is uncertain.

Still, the state’s erroneous record-keeping in the Warner case concerned Dale Baich, an attorney representing Oklahoma death row prisoners. “We cannot trust Oklahoma to get it right or tell the truth. We will explore this in detail through the discovery process in [ ] federal litigation,” he said.

Yet the state did not reform its ways following Governor Fallin’s suspension of executions, which turned out to be short-lived. Oklahoma attempted to execute Richard Glossip several times in 2015, finally abandoning the effort when it was realized, during the third attempt, that the ODOC had once again obtained incorrect lethal injection drugs.

With the final Glossip stay of execution, Oklahoma Attorney General Scott Pruitt announced that he would not seek any further executions until the conclusion of a grand jury investigation and adoption of new protocols. Glossip currently remains on death row.

 However, with the amendment of the state’s constitution relative to capital punishment, the ODOC may be encouraged to pursue new forms of execution. One such alternative, advocated by some death penalty proponents, is asphyxiation using nitrogen gas.

After all, what could go wrong with trying a new, untested execution method?

Sources: www.abcnews.go.com, www.huffingtonpost.com, www.csmonitor.com, www.time.com, www.aljazeera.com, Oklahoman

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