Oklahoma Death Row Case to Go to Trial After Botched Executions

A federal judge has ruled that a lawsuit challenging Oklahoma's lethal injection protocols can proceed to trial, almost seven years after botched and flawed executions prompted a moratorium on capital punishment in the state.

In a 43-page ruling on Wednesday, U.S. District Judge Stephen Friot agreed to consider at trial whether Oklahoma's three-drug protocol violates the Eighth Amendment's ban on cruel and unusual punishment.

"Plaintiffs are pleased that the court agreed that the merits of their Eighth Amendment claim need to be heard in a full trial," Dale Baich, an assistant federal public defender representing some of the death row inmates who are plaintiffs in the case, said in a statement provided to Newsweek. "We look forward to presenting our evidence in court."

A moratorium on executions has been in place in Oklahoma since 2015.

In September that year, Richard Glossip, the lead plaintiff in the case, was hours away from being executed when officials realized they had received the wrong lethal injection drug.

Before that, the state put Charles Warner to death using the wrong drug. In 2014, the state botched the execution of Clayton Lockett.

In February 2020, Oklahoma announced that it planned to resume executions using three drugs: midazolam, vecuronium bromide and potassium chloride. Midazolam was one of the drugs used to execute both Lockett and Warner.

But the plaintiffs in the case argue that the drug induces pulmonary edema, causing "an intolerable sensation of asphyxiation, equivalent to a botched hanging," Friot wrote in the order. The state argues that other U.S. states have used midazolam as part of their execution protocol without incident.

Friot's ruling only applies to 26 of the 32 plaintiffs who provided an alternative method of carrying out their death sentences.

A table included in the judge's order showed that most inmates preferred the use of pentobarbital or sodium thiopental. Fourteen chose midazolam as long as it was used with a pre-dose of anesthetic. The table also showed that 19 of the inmates proposed a firing squad, which is authorized under Oklahoma law, as an alternative method.

Some claims were rejected by Friot, including the right to know more information about the lethal drugs and to have access to counsel during an execution.

The court has set a scheduling conference for August 31 and indicated a trial could take place in January or February 2022, according to The City Sentinel.

A spokesperson for the Oklahoma Attorney General's Office said the office was reviewing the ruling.

Update 8/12/21, 11 a.m ET: This article was updated with comment from the Oklahoma Attorney General's Office.

Rally for Richard Glossip
Anti-death-penalty activists rally outside the U.S. Supreme Court in Washington, D.C. in a final attempt to prevent the execution of Oklahoma inmate Richard Glossip on September 29, 2015. Larry French/Getty Images for MoveOn.org