Oklahoma was not able to obtain the drugs needed to conduct an execution scheduled for this week, but the state aims to buy alternative chemicals for the lethal injection by the time the death sentence is carried out on Thursday, officials said Monday.
Several states, including Oklahoma, have had difficulty obtaining the chemicals traditionally used for lethal injections after some pharmaceutical companies clamped down on sales due to opposition to capital punishment. As a result, some states are turning to less regulated drugs for lethal injection — drugs that critics say lack purity and can cause undue suffering.
According to court documents filed by the state Monday, the Oklahoma Department of Corrections "remains without the drugs to carry out the lawful sentences of death" for two inmates the state plans to execute this month.
Attorneys for inmates Clayton Lockett, scheduled to be executed on Thursday, and Charles Warner, scheduled to be executed March 27, have requested that their death sentences be put on hold because of uncertainty over the drugs.
"The state wrote they were planning to use the three-drug cocktail, and they mention now they're thinking of using new drugs but don't list what they are," said Madeline Cohen, a federal public defender who previously represented Lockett and Warner. "I have to believe the Oklahoma courts will be concerned with this situation."
Lockett and Warner have a lawsuit pending against the Oklahoma Department of Corrections, saying it is illegal to withhold information about the drugs to be used in their executions and unfair that they cannot challenge Oklahoma's execution procedures in court.
Lockett, 38, convicted for the 1999 shooting death of a 19-year-old woman, and Warner, 46, convicted for the 1997 rape and murder of his girlfriend's 11-month-old daughter, have argued it is improper for Oklahoma to conduct its executions behind a “veil of secrecy” and argued that the untested drugs threaten their constitutional rights. The state argued in its court filing Monday that, in previous decisions, inmates were not allowed to challenge their executions just because something may go wrong.
The state attorney general's office would not speculate on what would happen if the drugs were not found by the time Lockett is due to be executed: "The Attorney General's Office is exhausting all available options to ensure the punishment for this heinous crime is carried out," spokesman Aaron Cooper said in a statement.
Under Oklahoma law, two alternative means of execution are available — electrocution and firing squad — but only if lethal injection is deemed unconstitutional. Since the current delay is based only on a drug shortage, the state cannot switch methods of execution, Corrections Department spokesman Jerry Massie said.
Oklahoma uses three main drugs to carry out its executions: the sedative pentobarbital, vecuronium bromide, which stops respiration, and potassium chloride, which stops the heart, according to the state's Department of Corrections.
Pentobarbital and other fast-acting sedatives were previously used in almost all lethal injections in the United States, but in 2011 the Danish pharmaceutical company Lundbeck banned American prisons from buying pentobarbital for the purpose of lethal injections, saying it was uncomfortable with its product's use in 15 state prison systems.
A U.S. manufacturer in 2009 stopped producing sodium thiopental, another fast-acting sedative used broadly in lethal injections, prompting many states to find alternatives.
In response, several states, including Missouri, Ohio, Florida, Montana and Georgia, have been turning to lightly regulated compounding pharmacies for drugs to use in lethal injections.
Advocates for inmates in several states have launched court challenges saying the replacement mix of compounding pharmacy drugs can lack purity and potency and cause undue suffering that violates the U.S. Constitution's protections against cruel and unusual punishment.
Family members of a man executed in Ohio in January, 53-year-old Dennis McGuire, convicted of the 1989 rape and murder of pregnant newlywed Joy Stewart, said he endured an “experimental” execution and suffered undue pain and suffering.
It took McGuire 26 minutes to die after the untested chemicals were injected into his body. His family has filed a federal lawsuit to stop Ohio and other states from using untested drug mixes on other condemned prisoners.
In Louisiana, after a federal court ordered the state to disclose its execution plans, it was revealed that it was planning to use the same combination — the sedative midazolam and the painkiller hydromorphone — that had been used in McGuire’s execution.
The execution of Christopher Sepulvado, convicted for the 1992 murder of his 6-year-old son, was put on hold by a federal judge “to allow for additional time for review and responses to outstanding issues related to execution.”
Al Jazeera and wire services