Oklahoma’s law governing executions is unconstitutional because privacy provisions prevent anyone from learning about the drugs used to kill the condemned, a state judge ruled Wednesday in the latest case in the growing area of death penalty litigation.
Oklahoma County District Judge Patricia Parrish ruled that the state’s secrecy laws prevent the courts and inmates from getting information about the drugs that would be used in executions, thus preventing them from exercising their rights under the Constitution.
“The secrecy statute is unconstitutional because it denies both the inmate and the court access to the information,” Chelsea Adkins, bailiff for Parrish, told the Los Angeles Times, describing the jurist’s ruling on the case. The ruling will likely be appealed.
Even though the ruling was made by a state judge, it could have an effect beyond Oklahoma’s borders, Richard Dieter, executive director of the Death Penalty Information Center, a Washington-based nonprofit group that tracks death penalty issues, told The Times. “A ruling like this can set a precedent on issues like this.”
Parrish issued her ruling in response to a request from inmates Clayton Lockett and Charles Warner, who are scheduled to be executed on April 22 and April 29, respectively. Both have requests to stay their executions pending in other courts.
Until 2010, most states used a three-drug cocktail, including an anesthetic and a paralyzing agent, to execute inmates.
But some suppliers, particularly companies in European countries that have banned the death penalty, have come under public pressure and have stopped making the medications available for carrying out executions. That has touched off problems for many states, forcing them to seek other sources for drugs needed for executions.
In January, Dennis McGuire, an inmate in Ohio was executed but witnesses reported that he gasped while dying and appeared to be in pain, which would violate constitutional prohibitions against cruel and unusual punishment. That became a factor in the current Oklahoma suit because Lockett and Warner wanted to know who was making the drugs that would kill them and whether the compounds were pure.
The state responded that under Oklahoma law, no one is allowed to disclose the source of those drugs, even if an inmate sues.
Most states have some form of secrecy requirements surrounding executions, Dieter said, and at least seven have specific laws on secrecy about the drugs used. As lawyers seek to litigate the issues surrounding executions, secrecy questions have become yet one more judicial frontier.
“Every state has had to change its method,” Dieter said. “All states are using relatively new drugs without much doctor participation or an anesthesiologist,” or are obtaining their drugs from secret sources. “It is natural for courts to be suspicious,” he said.
Oklahoma officials said they were examining Wednesday’s ruling, but Atty. Gen. E. Scott Pruitt has no made no secret of his desire to execute the inmates, convicted of murder.
[Updated, 12:52 p.m. PST March 26: In a statement released Wednesday afternoon, Pruitt’s office said it would appeal the ruling.
“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. 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. We are disappointed in the judge's ruling. The Attorney General's Office will file an appeal of this decision soon,” the statement said.]