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The Oklahoma Legal Group Blog

Oklahoma and the Death Penalty: Big Changes Looming

Adam Banner - Thursday, April 30, 2015

Oklahoma has lately been a hotbed of activity in matters relating to the death penalty. The state that invented the lethal injection as a means of execution is now having its methods questioned by the United States Supreme Court, and less than two weeks ago, Oklahoma approved yet another new method of execution.

On April 17, 2015, Governor Mary Fallin signed House Bill 1879 into law, a bill that would allow the use of nitrogen gas in death penalty executions if the United States Supreme Court should rule lethal injection unconstitutional. It seems that the state wants to cover all of its bases in making sure that the death penalty is alive and well in Oklahoma.

Under existing law, Oklahoma already had a backup plan if lethal injection was ruled unconstitutional: first, the electric chair, and if that is likewise ruled unconstitutional, then the firing squad. The passing of HB 1879 adds another option: requiring the inmate to breathe nitrogen, which would then lead to unconsciousness and death. Now, the order of operations when it comes to the death penalty in Oklahoma follows:

  • Lethal injection
  • Nitrogen gas
  • Electric chair
  • Firing squad

Why the need for so many backup plans?

In 2008, the United States Supreme Court upheld the constitutionality of the death penalty and the use of lethal injection as a means to carry out a death sentence. In that ruling, the court specifically upheld the use of a three-drug protocol including a barbituate sedative before the injection of drugs to stop the lungs and heart. 

However, since then, the refusal of European drug makers to supply pentobarbital to the United States for use in lethal injection and threats against U.S. drug manufacturers has led to a shortage of the drug. Many states, including Oklahoma, have turned to the use of midazolam as a sedative in their lethal injection protocols--a move that has been questioned after a number of "botched" executions. Beginning with the execution of Dennis McGuire in Ohio and continuing through the prolonged and apparently painful death of Oklahoma's Clayton Lockett, the use of midazolam as a sedative is being questioned. Critics say the drug does not work sufficiently well to render the condemned inmate unconscious.

Now several Oklahoma death row inmates have taken their case to the United States Supreme Court, calling the use of midazolam in executions a violation of their constitutional right to be free from cruel and unusual punishment.

Yesterday, the Supreme Court argued vigorously about the case, which appears to have sharply divided the Justices.

Justices Antonin Scalia and Samuel Alito seemed inclined to think that the sedative was sufficient, but both noted that death penalty abolitionists who have made it difficult for states to obtain pentobarbital are effectively driving the states to less sufficient methods which may be more painful for condemned inmates. 

Other Justices were concerned that the drug was experimental for executions and that it may be insufficient to render a patient unconscious and free from pain during the administration of lethal drugs. Justice Elana Kagan compared lethal injection without sufficient sedation to being burned alive at the stake:

“We’ve actually talked about being burned at the stake, and everybody agrees that that’s cruel and unusual punishment. So suppose that we said, we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects. Maybe you won’t feel it, maybe you will. We just can’t tell. And you think that would be OK?”

The state's attorney argued that her comparison was irrelevant to today and that, even if it was a relevant comparison, it was not the issue before the court. He maintained that experts maintain that the dosage of midazolam the state uses in lethal injections is sufficient to render an inmate unconscious within 60 to 90 seconds.

The United States Supreme Court is expected to reach a decision regarding the constitutionality of midazolam as a sedative in lethal injections by the end of June. If the Court opposes the sedative, it could mean the gas chamber for Oklahoma death row inmates. 






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