Oklahoma Death Penalty Protocol Upheld, Clearing Way for 28 Executions

A federal judge in Oklahoma has ruled the state's three-drug lethal injection protocol is constitutional, clearing the way for the state to execute the 28 death row inmates who were plaintiffs in the case.

Oklahoma's protocol involves administering the sedative midazolam, followed by the paralytic vecuronium bromide, and then the heart-stopping potassium chloride.

Attorneys for the inmates argued that midazolam is not able to render an inmate unable to feel pain and creates the risk of severe pain and suffering that violates the Eighth Amendment's prohibition on cruel and unusual punishment.

But after hearing conflicting expert testimony about the effectiveness of midazolam during a week-long federal trial earlier this year, Judge Stephen Friot's ruling on Monday said the drug can be relied upon for executions.

"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," he wrote in a 43-page ruling.

The U.S. Supreme Court requires inmates to show that an execution method "is sure or very likely to cause serious illness and needless suffering," the judge noted.

"The plaintiff inmates have fallen well short of clearing the bar set by the Supreme Court," he concluded.

Jennifer Moreno, an attorney representing the death row inmates, said they are still assessing their options for an appeal.

"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," Moreno said in a statement to Newsweek.

Oklahoma Attorney General John O'Connor welcomed the ruling, saying the state had proved that both the lethal injection drugs and its execution protocols are constitutional.

"The Court's ruling is definitive: The plaintiffs in this case 'have fallen well short' of making their case, and midazolam, as the State has repeatedly shown, 'can be relied upon... to render the inmate insensate to pain,'" O'Connor said in a statement.

O'Connor plans to seek execution dates for death row inmates from the Oklahoma Court of Criminal Appeals.

"The people of Oklahoma and the families who have suffered the murder of a loved one moved one step closer to justice with today's ruling," he added.

Oklahoma resumed legal injections in October last year with the execution of John Grant, who witnesses said convulsed repeatedly on the gurney and vomited before he was declared dead.

Since then, three more executions have been carried out without noticeable complications.

On Grant's execution, Friot's ruling said that the "physiological result of administering that massive dose of midazolam to a man with a full stomach was unsurprising." He said it was "highly probable" that all four inmates felt no physical pain other than that associated with the insertion of IV lines.

Grant's execution ended a de facto moratorium on capital punishment that was prompted by a series of botched or flawed executions.

Richard Glossip, the lead plaintiff in the lawsuit challenging the state's execution protocol, was just hours away from being executed in 2015 when officials realized they received the wrong lethal injection drug.

In January of that year the state put Charles Warner to death using that wrong drug. These mix-ups followed the botched execution of Clayton Lockett in in April 2014.

Death penalty stock image
File photo shows a view of the death chamber at the Southern Ohio Correctional Facility. A federal judge has upheld Oklahoma’s lethal injection protocol. Mike Simons/Getty Images