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Oklahoma lethal injection process muddled by ‘inexcusable failure,’ grand jury finds

The execution chamber at the Oklahoma State Penitentiary in McAlester, Okla. (AP)

A grand jury on Thursday sharply criticized state officials charged with carrying out executions in Oklahoma, describing them as responsible for a litany of failures and avoidable errors.

The grand jury’s 106-page report, released Thursday, paints these officials as careless and, in some cases, reckless. The missteps described by the grand jury include a pharmacist ordering the wrong drug for executions, multiple state employees failing to notice or tell anyone about the mixup and a high-ranking official in the governor’s office urging others to carry out an execution even with the incorrect drug.

“There is no more serious exercise of state authority than carrying out a death sentence,” Scott Pruitt, Oklahoma’s attorney general, said in a statement accompanying the report’s release. He said the grand jury report made clear that “a number of individuals responsible for carrying out the execution process were careless, cavalier and in some circumstances dismissive of established procedures that were intended to guard against the very mistakes that occurred.”

This grand jury investigation was launched after authorities in Oklahoma used the wrong drug to carry out one execution last year and nearly used an incorrect drug months later. In both cases, Oklahoma officials received the drug potassium acetate, even though the state’s lethal-injection guidelines require the use of the drug potassium chloride to stop the heart. (The other two drugs in the protocol include midazolam, a sedative, and vecuronium bromide, a paralytic.)

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Gov. Mary Fallin (R) called off the execution of Richard Glossip in September 2015 because she said state officials had obtained a drug not included in Oklahoma’s three-drug lethal injection protocol. Days later, Oklahoma officials acknowledged that they had also gotten the wrong drug for the execution of Charles Warner, carried out by lethal injection in January 2015.

The wrong drug was ultimately used in Warner’s execution because of the “inexcusable failure” of a few people, the grand jury stated, and because the state’s execution protocol lacks proper safeguards ensuring the right drug.

In its report, the grand jury did not determine that using the wrong drug altered Warner’s lethal injection, saying they found “no evidence the manner of the execution caused Warner any needless pain.” However, the report does say that using the wrong drug meant that Warner was not able to properly challenge the lethal injection procedure before his death.

“While we are still reviewing today’s report, the state-sponsored investigation confirms things we already knew and fails to address bigger questions for which we still do not have answers,” Dale Baich, an attorney for Warner, Glossip and another inmate executed in a bungled 2014 execution, said in a statement.

“What we do know is that secrecy, along with the use of an experimental drug combination, led to at least one botched execution in Oklahoma and a drug mix-up in another,” Baich said. “As the state continues to alter its execution protocol, more scrutiny is needed before experimental procedures are carried out in execution chambers.”

The grand jury report also highlights issues facing corrections officials trying to obtain drugs amid a nationwide shortage, as companies have pushed not to have their drugs used in lethal injections.

Officials told the grand jury they first struggled to find a pharmacist with the drug they sought. When they did get a pharmacist who sent the incorrect drug, he cited “pharmacy brain” in explaining the mixup and was described by the grand jury as “negligent.” The pharmacist told the grand jury he first learned he had sent the wrong drug when he was contacted 30 minutes before the canceled execution in September.

Echoing the “pharmacy brain” explanation, a member of the execution team — identified as the “IV Team Leader” — was asked why nobody noticed the incorrect drug during the January 2015 execution.

“That’s a great question,” the execution team member responded, according to the grand jury. “And I don’t know that I can absolutely answer that.”

Oklahoma says it may have used the wrong drug in a lethal injection

Three prominent officials stepped down amid the investigation into the mixup, which indefinitely halted executions in the state and raised new questions about how lethal injections are carried out in Oklahoma, the country’s second most active death-penalty state.

One of those officials, Steve Mullins, Fallin’s former general counsel, is described in the grand jury report as “flippantly and recklessly” defying the state’s lethal injection protocol. According to the grand jury, Mullins testified that because the pharmacist and “IV Team Leader” thought the two drugs — potassium chloride and potassium acetate — were medically interchangeable, he felt comfortable and wanted to proceed with the September execution and then seek “clarification” before the next execution.

Mullins resigned earlier this year after testifying before the grand jury. In a statement, Fallin did not specifically comment on the portions of the report mentioning Mullins, saying that she had just received the report and needed time to read it.

“When the state of Oklahoma carries out the death penalty, we must ensure that the process is appropriate and in full compliance with the law,” Fallin said. “It is imperative that Oklahoma be able to manage the execution process properly.”

Both Fallin and Pruitt said they remain confident that with new leadership at the Department of Corrections — that agency’s head also stepped down during the grand jury investigation — the state will be able to properly carry out executions in the future.

“We will take a close and thorough look at the grand jury’s final report and will reserve comments until a full vetting process has been undertaken by the department,” Joe M. Allbaugh, interim director of the state’s Department of Corrections, said in a statement. “After reviewing the grand jury’s recommendations, we will determine if additional changes need to be made.”

The report also touches on other aspects of how executions in Oklahoma are carried out now and may be carried out in the future. Oklahoma officials are described seeking a stack of $100 dollar bills to pay for drugs for the next set of executions. In another portion, the grand jury recommends that Oklahoma authorities conduct more research before using nitrogen gas to execute inmates, since the state adopted this as a backup method if lethal injection is unavailable.

For the future, the grand jury recommends making clearer who has what responsibilities during the execution process. The grand jury report released Thursday also notes that it is an interim report, stating that its members will meet again in June and resume the investigation.

“When the state fails to do its job in carrying out an execution, the ability to dispense justice is impaired for all,” Pruitt said. “This must never happen again.”

The Oklahoma Office of the Chief Medical Examiner released an autopsy report last fall stating that after the state executed Charles Warner in January 2015, his body was delivered to them for an autopsy. The medical examiner received containers for the lethal injection drugs, which included empty vials labeled potassium acetate. The report also said there were empty syringes labeled potassium chloride.

At the same time, Pruitt asked for executions in the state to be postponed to let officials figure out what had happened and why the wrong drug had been obtained.

An Oklahoma court indefinitely pushed back three executions already on the calendar for the weeks after the mixup. Pruitt said last fall he would not seek any executions until 150 days after the investigation is completed and prison officials say they can follow the Oklahoma execution protocol. As a result, it could be some time until executions resume in the state.

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While this investigation continued, key figures in the probe stepped down from their positions. In addition to Mullins, the warden at the state penitentiary where executions occur retired and the head of the Oklahoma Department of Corrections announced his resignation.

Officials said that the warden, Anita Trammell, had been considering retirement and was not pushed out, while they said that Robert Patton, the former corrections chief, took another job to be closer to his grandchildren. Mullins, Fallin’s general counsel, said when he resigned that he was taking a voluntary buyout to help cut costs.

“Oklahomans should carefully consider the grand jury’s conclusions and ask themselves whether they should trust their state with the death penalty,” Marc Hyden, national coordinator for Conservatives Concerned About the Death Penalty, said in a statement. “Considering the state’s history of botched executions and wrongful convictions, Oklahoma’s track record suggests that it hasn’t adequately earned the people’s trust.”

Oklahoma’s system of capital punishment has been more high-profile than most recently, as its processes and procedures have spawned investigations, drawn international attention and prompted the most recent Supreme Court case to debate lethal injection.

Oklahoma says it will use nitrogen gas as a backup method of execution

The grand jury report Thursday is the second sprawling probe into an execution mishap in Oklahoma in less than two years. In the most high-profile bungled execution in recent memory, Clayton Lockett, a convicted murderer, grimaced and writhed in 2014 during his lethal injection and even though officials halted the process, he died 43 minutes later. That incident halted executions in the state and was criticized by both President Obama and the United Nation. A state investigation later found problems with the training of the execution team.

The lethal-injection process used in that execution was also the focus of a case the U.S. Supreme Court heard looking at the state’s use of midazolam, a sedative used in Lockett’s execution and two others that went awry in 2014. The justices decided to hear the case just days after the January 2015 execution of Warner that Oklahoma officials later said may have used the wrong drug. The court ultimately upheld Oklahoma’s use of midazolam.

Since the U.S. Supreme Court reinstated the death penalty in 1976, Oklahoma has executed 112 inmates, trailing only Texas in that regard, according to the Death Penalty Information Center.


Most Americans support the death penalty. They also agree that an innocent person might get put to death.

Lethal injection has become a fractured process across the United States

The state Supreme Court justice who stepped down to protest the death penalty