OKLAHOMA CITY — A federal judge ruled Monday that a group of Oklahoma death-row inmates has fallen “well short” of proving that the state’s lethal injection protocols violate their constitutional rights. The ruling opens the door for the state to resume stalled executions.
The 28 inmates had argued that Oklahoma’s execution protocol and use of midazolam — the first drug administered as part of Oklahoma’s three-drug lethal injection cocktail — created a risk of serious pain and suffering and that there were alternatives that could curtail those risks. The inmates had contended that the state’s protocols violated their Eighth Amendment guarantee against cruel and unusual punishment.
U.S. District Judge Stephen P. Friot ruled that the requirements of a successful lethal injection challenge under the Eighth Amendment have been made clear by the U.S. Supreme Court.
“The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court,” Friot wrote. “Consequently, the Eighth Amendment, as construed and applied by the Supreme Court in its lethal injection cases, does not stand in the way of execution of the Oklahoma inmates in this case…”
Friot also wrote in his 45-page judgment that the vomiting experienced by inmate John Grant during his execution last October was unsurprising given that the state executed him with a full stomach, and that Grant’s convulsions on the gurney were likely related to his tongue obstructing his airway after falling unconscious, Friot wrote.
Grant’s convulsions and vomiting were a critical argument for the death row inmates, who argued that the state’s first drug is not adequate to render an inmate unconscious and that the second drug, vecuronium bromide, which is a paralytic, then hides any signs of suffering.
The inmates had sued Scott Crow in his role as Oklahoma Department of Corrections director, the board of corrections, and the wardens of the Oklahoma State Penitentiary and Mabel Bassett Correctional Center, among others, in an effort to halt their executions.
Friot wrote that the state executed four inmates in the weeks before the federal trial began into the use of the drug, and after assessing the testimony from witnesses who viewed or participated in the executions “little, if anything, relevant to the issue of infliction of pain and suffering can be inferred from anything the inmate did (or, more to the point, did not do) after the vecuronium bromide was pushed.”
Rarely in any field of litigation, Friot wrote, does a court see and hear well-qualified expert witnesses giving expert testimony as squarely – and emphatically – contradictory, on the issue at the heart of the matter, as in the case. Friot though noted that testimony provided by Dr. Ervin Yen, an Oklahoma anesthesiologist who has administered midazolam thousands of times, was particularly credible. Yen, who witnessed Grant’s execution and the later executions of Bigler Stouffer and Gilbert Postelle, testified on behalf of the state.
Yen testified that Grant appeared to lose consciousness in less than a minute, and noted that soon after, Grant’s chest and abdomen moved up and down in a “rocking boat” motion, which he’s never seen occur in someone conscious. Yen testified that the probable cause of that was an obstruction of Grant’s breathing due to a blockage of his throat by his tongue - a natural result of administering 500 milligrams of midazolam.
Friot wrote that the state used “a massive dose” of midazolam - many times higher than the recommended clinical dose - “injected in an exceedingly short period of time,” well above the speed recommended on the FDA label. He also concluded that midazolam can maintain anesthesia, but the inmates’ arguments ignored the fact that the anesthesia or deep sedation is only required for a few minutes.
Friot wrote that the midazolam FDA label discloses that “retching” or “vomiting” are potential side effects. He said at 3:15 p.m. — just before Grant was taken to the execution chamber — he was eating chips and drinking soda. The execution started around 4 p.m.
“Grant’s substantial intake of food and beverages in the hours before he was executed would naturally have predisposed him to loss of gastric contents – regardless of whether midazolam was a causal factor – while he lay on the gurney …” Friot wrote.
Friot also wrote that the physiological result of administering that massive dose of midazolam to a man with a full stomach was “unsurprising.”
Attorneys for the death row inmates had to prove that the state’s lethal injection procedure created a certain or likely risk of severe pain, and that there was an alternative.
“The evidence persuades the court, and not by a small margin, that even though midazolam is not the drug of choice for maintaining prolonged deep anesthesia, it can be relied upon, as used in the Oklahoma execution protocol, to render the inmate insensate to pain for the few minutes required to complete the execution,” Friot wrote.
Oklahoma attorneys contended that the risk of pain is inherent in any execution method, and the U.S. Constitution doesn’t require the avoidance of all pain. Nor does it force a state to be the first to experiment with an execution method.
In a statement Monday, attorneys for the inmates said the court reached its decision “despite receiving extensive expert testimony” during the February trial that midazolam is “not capable of reliably protecting prisoners against severe pain and suffering.”
They said the evidence also showed that the state’s protocol does not include adequate safety procedures to prevent “problematic executions” and that executioners are inadequately trained.
“The district court’s decision ignores the overwhelming evidence presented at trial that Oklahoma’s execution protocol, both as written and as implemented, creates an unacceptable risk that prisoners will experience severe pain and suffering,” said Jennifer Moreno, an attorney for the inmates. “We are assessing our options for an appeal.”
In a statement, the Oklahoma Department of Corrections said it is “prepared to carry out the orders of the court in accordance with state statute.”
Oklahoma Attorney General John O’Connor, whose office defended the case, said the families of murder victims move one step closer to justice with Monday's "definitive" ruling.
“The state has proven that the drugs and method of execution satisfy the United States and Oklahoma constitutions," he said in a statement.
O'Connor said his team is reviewing the U.S. District Court’s order further and will make a decision regarding when to request execution dates from the Oklahoma Court of Criminal Appeals.
The state’s problems with executions date back to 2014 when it bungled the execution of Clayton Lockett, who took 43 minutes to die. Witnesses reported that Lockett writhed and appeared to be conscious at points during the execution, leading critics to question whether midazolam was powerful enough to render a person unconscious. A state investigation later found that an IV used to administer the lethal drugs to Lockett had come loose, but wasn't immediately noticed, during the execution.
The state then used a non-approved drug in the January 2015 execution of Charles Warner.
Following the two execution mishaps, the U.S. Supreme Court in 2015 upheld Oklahoma’s execution procedure that relied on midazolam to render unconsciousness. At the time, Oklahoma was one of five states that used midazolam. The Attorney General at the time, though, agreed to halt all executions pending the outcome of the federal trial.
Under the leadership of a new attorney general, Oklahoma ended a nearly seven-year execution moratorium in October 2021 when DOC officials used its new lethal injection protocols to put Grant to death. Media witnesses reported Grant convulsed and vomited. An autopsy later confirmed that Grant vomited, aspirated and inhaled stomach contents into his airways.
All remaining executions have been on hold, pending Friot’s decision.
Janelle Stecklein covers the Oklahoma Statehouse for CNHI's newspapers and websites. Reach her at firstname.lastname@example.org.