OKLAHOMA CITY (AP) — Facing a shortage of its traditional execution drugs, Oklahoma has revised its procedures to include the same two-drug mixture that left an Ohio inmate making gasp-like sounds as his lethal injection was carried out earlier this year, lawyers for two condemned inmates said Monday.
The attorneys said in a court filing that they were notified after business hours Friday that Oklahoma's prison system had adopted five acceptable ways to put death-row inmates to death. All involve multiple doses of sedatives that by themselves could be lethal.
The Oklahoma attorney general's office had notified the state Court of Criminal Appeals on March 17 that it couldn't obtain the sedative pentobarbital and the paralytic agent vecuronium bromide. Those drugs, along with potassium chloride, which stops the heart, had been Oklahoma's execution-drug mixture.
Now the protocols include a megadose of pentobarbital by itself, or the combination of midazolam and hydromorphone, which was used in the January execution of Dennis McGuire in Ohio. McGuire made gasp-like sounds for several minutes before being pronounced dead after 26 minutes.
Another allowed drug combo is midazolam, vecuronium bromide and potassium chloride — which has never been used in an execution in the U.S., said Jen Marino, a staff attorney at the University of California Berkeley School of Law's Death Penalty Clinic.
"If the department is going to use one of these other methods, particularly the one that's never been used before, that's really something the courts need to look at and should have an opportunity to review before the department is allowed to use this controversial combo of drugs," she said.
Jerry Massie, a spokesman for the Oklahoma Department of Corrections, said he could not provide a copy of the new protocols and referred The Associated Press to Attorney General Scott Pruitt. Pruitt spokeswoman Diane Clay said it was "unlikely" the attorney general's office would respond to AP's request.
The new protocols give the state a larger "veil of secrecy" that the inmates have been fighting against, said Seth Day, among the lawyers representing two Oklahoma inmates challenging the state's refusal to reveal where it obtains its execution drugs.
"The warden could choose at the last minute to use option five instead of option one, and they would have no obligation to inform the inmates or their lawyers," Day said.
The inmates, Clayton Lockett and Charles Warner, filed a lawsuit last month challenging a law that bars disclosure of specifics about the state's execution procedures. They want to ensure that the drugs used in their executions, which have been rescheduled from March to April, are pure.
In the Monday court filing, their attorneys said it appeared that the Oklahoma Department of Corrections could follow any protocol it liked without having to tell the inmate ahead of time. They also said it would allow drugs from unnamed companies, including compounding pharmacies that face less scrutiny from the U.S. Food and Drug Administration than traditional drug makers.
"This would allow the ODOC to obtain various drugs, from varying sources without any FDA oversight or regulation, not to mention doing so with no judicial oversight on whether the 5 options would subject the condemned inmate to cruel and unusual punishment," they wrote.
States have had trouble obtaining supplies of lethal drugs after European manufacturers objected to their use in executions and domestic companies feared being singled out for protests.
In turn, some states have gone to compounding pharmacies or have sought to buy drugs from other death-penalty states.
Texas, the nation's busiest death-penalty state, offered few details after saying last week that it had obtained a supply of execution drugs. An Associated Press review showed that Texas had a supply of the painkiller hydromorphone and the sedative midazolam.
Under Oklahoma's new protocols, the state is allowed to use, in addition to midazolam with hydromorphone, sodium thiopental as a potential substitute for pentobarbital in a three-drug combination. The protocols also state that even if a sedative kills the inmates on its own, the execution team should follow the new guidelines and inject the other lethal drugs into the inmate's body.
Lockett was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner was found guilty of the 1997 rape and murder of his girlfriend's 11-month-old daughter.