Two Oklahoma death row inmates have filed a lawsuit against the state Department of Corrections over concerns about the secrecy of the compounding pharmacy used to supply the pentobarbital used in lethal injections. Pending the resolution of the lawsuit, Clayton Derrell Lockett, 38, and Charles Frederick Warner, 46, are seeking a stay of execution. Both men are scheduled to be put to death by lethal injection in the next two weeks. Lockett's execution is currently scheduled for March 20; Warner's is scheduled for March 27.
The men requested a temporary stay of execution from Oklahoma County District Judge Patricia Parrish on Monday. She denied the request, saying that while she is the appropriate judge to handle the lawsuit, she does not have jurisdiction to delay their executions.
Yesterday, lawyers for the two inmates asked the Oklahoma Supreme Court for an emergency stay of execution to delay the executions until after the lawsuit has been resolved.
At issue in the lethal injection lawsuit is the Oklahoma Department of Correction's policy of keeping the names of compounding pharmacies secret. The plaintiffs say that the DOC's secrecy about the source of the pentobarbital used in the state's 3-drug lethal injection protocol could lead to significant suffering.
In recent months, several death row inmates have appeared to have discomfort or made statements upon injection that seemed to indicate that the process is not as painless as claimed. An inmate executed in September appeared to grimace. One executed in January of this year complained of a "chemical taste" in his mouth, and another said, "I feel my whole body burning."
Oklahoma became the first state to use pentobarbital in lethal injections. When it was first used, an expert testified that the 5 grams of pentobarbital used in the state's lethal injection protocol was more than sufficient to stop pain and to stop the inmate's breathing.
However, some people have become concerned that his statements applied only to pure pentobarbital. The compounding pharmacies which supply the drug may have different mixtures for different purposes, and the strength or weakness of these mixtures could affect the amount of suffering an executed inmate endures.
The lawsuit says that by keeping the Department of Correction's pentobarbital supplier secret, there is no way to know what mixture is being provided. In light of recent executions, lawyers and inmates are concerned that the pentobarbital does not eliminate pain, but merely masks it by rendering the inmates unable to move.
If the mixture causes undue suffering, it would be a violation of the inmates' rights to be free from cruel and unusual punishment.
The lawsuit filed by Lockett's and Warner's attorneys has been moved from state court to federal court and back to Oklahoma County District Court. The lawsuit challenges whether shielding the source of the drug is a violation of the Oklahoma Constitution, and whether allowing pentobarbital to be used in lethal injections is a violation of the Oklahoma Administrative Procedures Act.
