Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

Death Penalty Drugs Debate

Adam Banner - Thursday, March 06, 2014

As states scramble to decide the best course of action for dealing with the national shortage of death penalty drugs, Louisiana has taken a somewhat sensible position: the state has postponed the execution of one of its inmates in order to review the constitutionality of its new proposed poison – I mean “protocol.”

Now, I say “somewhat sensible” because they are obviously excluding the most sensible alternative, which would be to simply instate a moratorium on the death penalty. But hey, coming from Oklahoma, I’m a fish out of water with that kind of logic. I guess a “review” of the new protocol is at least a step in the right direction.

Regardless, we as a nation have to move on from the accepted norms of the three-drug protocol proponents have grown to love.

Oklahoma was the first state to employ pentobarbital , a drug initially used to euthanize animals, in a three-drug protocol for lethal injections. The state replaced sodium thiopental with pentobarbital in 2010 after a shortage of the drug (sound familiar?). Despite death row inmate John David Duty’s claims that using the drug in question for lethal injections in humans would amount to cruel and unusual punishment, the state executed him with a three-drug injection including pentobarbital. Since then, 17 Oklahoma death row inmates have been executed using the recently accepted combination.

In most executions involving the drug, inmates have shown no outward sign of discomfort. However, two inmates executed in January lived just long enough to complain after being injected. According to a news report, Kenneth Eugene Hogan, executed January 23 for the stabbing death of Lisa Stanley in 1988, complained of a metallic taste in his mouth within seconds of being injected. The final words of Michael Lee Wilson, executed January 9 for the killing of a convenience store clerk, were uttered 20 seconds after being injected, when he said, “I feel my whole body burning.”

Despite these complaints, Oklahoma does not plan to review its lethal injection protocol, which uses pentobarbital (a sedative), followed by vecuronium bromide (stops breathing) and potassium chloride (stops the heart).

Still, the state may be forced to review its protocols after a shortage of pentobarbital is leading other states to find a substitution. Ohio, which joined Oklahoma as the first states to use pentobarbital following the sodium thiopental shortage, recently attempted an execution using a combination of midozolam (sedative) and hydromorphone (painkiller). When using this two drug protocol on death row inmate Dennis McGuire, the execution took 24 minutes from the time of injection until the time of death, the last 10 minutes of which were marked by gasping and convulsions.

The pentobarbital shortage comes after European drug manufacturers, including the Dutch pentobarbital manufacturer Lundbeck, refuse to export their drugs to the United States if the states use the drugs for executions.

According to a recent Huffington Post article, some states are considering a return to firing squads, electrocution, and the gas chamber in response to a shortage of lethal injection drugs. Some states already allow electrocution and gas-chamber deaths as an alternative to lethal injection if the inmate chooses.

Critics say there could be a backlash against re-instating these methods, which many states have abolished as cruel and unusual punishment. Others are calling for a moratorium on the death penalty until lethal injection protocols can be evaluated in light of drug shortages. Experimenting with drug combinations is also cruel and unusual. No one knows how a person will react to a drug combination until it is actually used.

Some death row inmates may be monsters, but they aren’t science projects.

There won’t be any of that talk in Oklahoma, though. My state is a staunch supporter of the death penalty. In the first month of 2014 alone, Oklahoma has already executed two death row inmates. Oklahoma ranks among the top 5 death penalty states, executing an average of 3 people per year from 2007 through 2010. Hell, we are already over half way past the yearly average, and we haven’t even made it through the first quarter.

I love Oklahoma. I really do. But its topics like the death penalty and our refusal to reform that make me cringe at how our state might be viewed across the country. Oklahoma is the last state to have executed a person for a crime committed as a juvenile, putting Scott Allen Hain to death by lethal injection on April 3, 2003. Less than two years later, in Roper v. Simmons, the United States Supreme Court ruled that the death penalty was unconstitutional for juvenile offenders.

Our current law is even behind the times. Oklahoma still technically allows the death penalty for first degree rape, regardless of several Supreme Court rulings which hold capital punishment unconstitutional for crimes excluding murder:

  • Coker v. Georgia (1977) – the death penalty is unconstitutional for the rape of an adult woman who is not killed
  • Godfrey v. Georgia (1980) – the death penalty is not allowable for ordinary murder, but only for aggravated murder, including murder which is “especially heinous, atrocious, or cruel”
  • Kennedy v. Louisiana (2008) – the death penalty may not be imposed in a case where the life of the victim was not taken

With all this in mind, Oklahoma is not likely to go willingly into a moratorium on executions, and its current stance on the review of lethal injection protocols demonstrates that it is unlikely to take a proactive approach in addressing capital punishment. But its not alone. While some states, such as Louisiana, are at least taking the time to make sure their new cocktails aren’t cruel, many other states want to revert back to gassing people to death. Is the death penalty that ingrained in our American society?


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