Wednesday, February 04, 2015

Death Row Inmates' Challenges to Oklahoma Execution Method Rejected

Warner v. Gross, 2015 WL 137627 (1/12/15) (Okl.) (Published) (slip opinion here) - The 10th paves the way for Oklahoma's execution of Mr. Warner and three other death row prisoners due to be killed on or before March 5th. It refuses to grant a preliminary injunction to stop the impending executions based on a challenge to the use of midazolam [which Oklahoma wanted to use because it couldn't get the ol' tried and true sodium thiopental, which the manufacturers are refusing to provide for executions], and the execution protocol. The 10th did not find the requisite likelihood of success on the merits. Oklahoma investigated the horrifying execution experience of Clayton Lockett. The execution team over the course of nearly an hour made at least 12 attempts to get IV access to Mr. Lockett's cardiovascular system They thought they finally succeeded. They injected the midazolam and determined it had rendered Mr. Lockett unconscious. It then administered the paralyzing agent. Partway through the injection of the third drug that is supposed to induce cardiac arrest, Mr. Lockett suddenly began to move and said: "This sh.. is with my mind. The drugs aren't working." The team noticed a large area of swelling near the IV access point. The team tried to insert the IV somewhere else. They eventually terminated the execution process, but Mr. Lockett died 43 minutes after the midazolam was first injected. Mr. Warner was scheduled to be executed right after Mr. Lockett. But Oklahoma postponed his execution instead. The 10th described this whole experience as a "procedural disaster."

Oklahoma determined the problem with the Lockett execution was not the midazolam, but the failure to insert the IV properly and not properly determining if Mr. Locket was really unconscious. But, despite the problems, the concentration of midazolam in Mr. Lockett's blood was greater than the concentration required to render the average person unconscious. Oklahoma instituted new procedures so it could do a really bang-up job of killing people: a higher dose of midazolam and detailed procedures for establishing IV access, administering the chemicals and dealing with "mishaps." The plaintiffs contended midazolam has a ceiling effect [there's a certain dosage beyond which there's no incremental anesthesia effect] and a risk of paradoxical reaction [agitation, etc.]. The 10th observed that some risk of pain is okay. The plaintiffs had to show an objectively intolerable substantial risk of harm. Given the d. ct.'s rejection of the plaintiffs' experts' opinion and acceptance of the state's only expert [he was a dean after all] saying the dosage of midazolam would render people unconscious because there was only a ceiling effect for the spinal cord, not the brain, the plaintiffs were not likely to show an Eighth Amendment violation. The errors in the state's expert's testimony [misidentification of the reported dose range of midalozam and the federal agency responsible for certain standards and his incorrect claim about a certain chemical effect of the drug] were not sufficiently serious to render his testimony unreliable, the 10th finds. The 10th also affirmed the d. ct.'s conclusion that the new procedures would likely prevent any future problems with executions. And it was impressed by the fact that midazolam had been used "successfully" 12 times. Plus the plaintiffs had not met their burden to proffer alternative constitutional procedures that would kill them without pain. They suggested the use of drugs that were not available to the state. There is no requirement that a state's procedure have already been tried by many other states. Otherwise states would never be able to kill people in new ways. In a footnote, the panel notes that not one of the 10th Circuit judges requested an en banc poll on the questions presented.