An Oklahoma appeals court postponed a pair of executions Tuesday because it doubts the state can get the drugs it needs in time to carry them out.
The problem Oklahoma is facing is caused by the increasing reluctance of pharmaceutical companies to supply the drugs needed for lethal injections and of pharmacies to prepare the compounds necessary to ensure a quick death. Many companies based in Europe with longtime opposition to the death penalty simply stopped selling to prisons and corrections departments.
The scarcity is forcing states to search for substitutes.
Already this year, the drug shortage prompted a failed attempt in Virginia’s legislature to allow the state to use the electric chair and another in Wyoming to allow the use of firing squads. A provision in Oklahoma’s state law kept it from falling back on either option this week.
The execution of Clayton Lockett, initially scheduled for Thursday, was reset to April 22 by the Oklahoma Court of Criminal Appeals. The execution of Charles Warner, originally scheduled for March 27, was postponed until April 29, according to court records.
Lockett, 38, was found guilty in the 1999 shooting death of a 19-year-old Perry, Okla., woman. Warner, 46, was found guilty for the 1997 rape and murder of his girlfriend’s 11-month-old daughter, The Associated Press reported.
The drug situation has reached the point where some states are declining to reveal where they shop for the lethal mixtures. In fact, the lawsuit that produced Tuesday’s order revolved around that secrecy.
The two Oklahoma inmates sued last month challenging the constitutionality of a secrecy provision of the state’s death penalty law. The clause prohibits disclosure of the supplier of any execution drug as well as the name of anyone who participates in an execution. They asked the court for a stay to give them more time to defend their rights, according to court records.
The court said the request was moot because the state prison didn’t have enough drugs to carry out their executions anyway.
Federal public defender Madeline Cohen, one of Warner’s attorneys, told The Washington Post:
“The reason we are challenging the secrecy law is because the commercially manufactured FDA supply of one of the anesthetics that Oklahoma used for executions disappeared from the U.S. market a few years ago. … So where are they getting the drugs? Who’s manufacturing them? Are they safe? Are they contaminated? And under the secrecy law, they can’t tell us — and won’t tell us — anything.”
According to the Death Penalty Information Center, the first drug used in the three-drug combination for lethal injections is either pentobarbital (or, formerly, sodium thiopental) which acts as an anesthetic. The second, pancuronium bromide, is a paralytic agent. And the third, potassium chloride, stops the heart.
On Monday, the attorney general’s office said a deal to obtain pentobarbital and vecuronium bromide, a muscle relaxer, had fallen through.
Richard Dieter, executive director of the Death Penalty Information Center, told the Post that the shortage began several years ago when the Illinois-based drug company Hospira stopped selling sodium thiopental.
“All of the states [that use lethal injection] have had drug shortage issues in the sense that they were all using sodium thiopental and that became unavailable so they all had to change. It doesn’t mean all the states are paralyzed and can’t carry out executions. Some states are proposing older methods because they’re uncertain they will be able to resolve the drug shortage. But I don’t think it will really happen.”
Eight states currently list electrocution as an alternative to lethal injection. Three list the gas chamber, three hanging and two others the firing squad, according to data from the Death Penalty Information Center. Dieter said 32 states currently use lethal injection as the method of choice.
A hearing is set for March 26 on whether it’s proper for the state to keep execution procedures secret.
In its brief to the court, the state of Oklahoma stated it would:
“Continue to pursue any and all leads in an attempt to obtain the necessary execution drugs in the days leading up to the scheduled executions of Lockett and Warner. Should the drugs become available, [the state] intends to proceed forward with these executions as scheduled…”