Public Safety & Justice

Judge Rules There's a Constitutional Problem with Okla. Death Penalty Policy

by | March 27, 2014
 

By Graham Lee Brewer

A judge ruled Wednesday the state must reveal where it gets its lethal injection drugs.

Two inmates scheduled for executions this month -- Clayton Derrell Lockett, 38, and Charles Frederick Warner, 46 -- sued the state to determine the source of the drugs.

Not allowing Lockett and Warner to know the source and quality of the drugs denied them the ability to decide whether or not their rights might be violated, Oklahoma County District Judge Patricia Parrish said.

It's not clear whether the ruling could lead to delays for future executions.

Both men have argued their constitutional protections against cruel and unusual punishment would be violated if the drugs were unsafe, causing them pain during execution.

Attorneys representing the two men pointed to the January execution of Micheal Lee Wilson, who said "I can feel my whole body burning" just before he died.

The state amended protocol last week to include the use of additional lethal drugs, including a mixture that took about 25 minutes to kill an Ohio man in January.

"I do not think this is even a close call," Parrish said. She said state law is so broad it bars the sharing of the source of the drugs in civil or criminal proceedings, keeping even her from asking for the source while considering her ruling.

"What good is their access to the courts if you can't tell me the information," Parrish said.

Assistant Attorney General John Hadden argued much of the concern over the drugs is speculation. He said the sources need to be kept secret to protect their safety. Hadden pointed to threats of violence made to compounding pharmacies by anti-death penalty activists.

"We're talking about people who are willing to send in bomb threats to compounding pharmacies," Hadden said.

Moments after the ruling, lawyers for the two inmates acknowledged an appeal to the state Supreme Court by the state was likely but said they were happy with Parrish's decision.

"This case was all about transparency, having access to information," said Susanna Gattoni, one of their attorneys. "And, so we're very, very pleased that the district court ruled that people do have the right to know what the government's doing. That's essentially what she said today. They have to give us the information, and now they will."

It is unclear who exactly the state must reveal its lethal drug source to or what time frame it has to do so.

Lockett and Warner's executions are scheduled for April 22 and 29, respectively, said state Corrections Department spokesman Jerry Massie. Massie declined to comment further on any aspect of the executions, including whether or not the state has the drugs necessary to carry them out.

"We will confer with the attorney general's office once we have received the written order to determine our legal course of action," Massie said.

In an emailed statement Wednesday, the attorney general's office said it would appeal the ruling, contending secrecy laws protecting pharmacies have been upheld elsewhere.

"The entire reason for Oklahoma's confidentiality statute is to protect those who provide lethal injection drugs to the state from threats, coercion and intimidation," said Diane Clay, spokeswoman for the attorney general. "The issue of confidentiality surrounding the state's source of lethal injection drugs has been litigated at both the state and federal level and found to be constitutional."

Clay could not confirm what court they would appeal to, and she was unable to answer questions about what the appeal could mean for the inmates' executions or if and when they would get the information on the state's drug source.

An appeal to the state Supreme Court by the attorney general could put a stay on Parrish's ruling, said Madeline Cohen, Warner's federal public defender. If that happens, a new ruling would have to confirm Parrish's decision before her client could know the identity of the drug supplier and decide whether or not to challenge the state's lethal injection process.

"He's [Warner] relieved and pleased, but of course the roller coaster is continuing for him," Cohen said.

The state has 30 days to appeal the ruling, and Lockett and Warner are not allowed the information before that process is complete, said Seth Day, one of the attorneys representing the inmates. Day said they plan to file a new emergency stay of execution request with the Oklahoma Court of Criminal Appeals.

(c)2014 The Oklahoman

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