By Graham Lee Brewer
The Oklahoman
OKLAHOMA CITY, Okla. — Two Oklahoma death row inmates are challenging the constitutionality of the law allowing the state to keep secret its source of lethal injection drugs.
According to the lawsuit filed Wednesday in Oklahoma County District Court, Clayton Lockett and Charles Warner have reason to believe Oklahoma’s execution method carries with it “a substantial risk of inflicting severe pain,” which would violate their constitutional rights against cruel and unusual punishment.
Lockett, 38, was one of three men who forced their way into a Perry home in 1999; some of those at the home were beaten, four were kidnapped. Stephanie Michelle Neiman, who was 19, was raped and killed and buried in a shallow grave in rural Kay County.
Lockett was found guilty of first-degree murder, conspiracy, first-degree burglary, three counts of assault with a dangerous weapon, three counts of forcible oral sodomy, four counts of first-degree rape, four counts of kidnapping and two counts of robbery by force and fear. Lockett is scheduled for execution on March 20.
Warner, 46, was convicted in Oklahoma County of raping and killing 11-month-old Adriana Waller in 1997. The infant was the child of his girlfriend. Warner was given the death penalty for the killing and 75 years for the rape. Warner is scheduled for execution March 27.
Assistant Federal Public Defender Madeline Cohen, who represents Warner, makes much the same argument attorneys representing a Missouri death row inmate made in recent months, that the policy of secrecy by the state Corrections Department keeps death row inmates from knowing the quality of the drug that will be used to kill them.
Cohen contends Pentobarbital, a barbiturate used in the execution process to render the condemned person unconscious, doesn’t stop the inmate from feeling pain but only works to keep them paralyzed.
“The second drug is basically only used for optics, to make the execution look placid,” Cohen said.
On Jan. 9, Michael Lee Wilson, 38, was put to death by the state for participating in the 1995 murder of Tulsa store clerk Richard Yost. Wilson’s final words were “I feel my whole body burning.” The petition filed Wednesday uses Wilson’s last words as an example of the uncertainty of the process.
Oklahoma still uses a three drug lethal injection method. In 2010, an expert for the state, Dr. Mark Dershwitz, told a federal judge the five grams of pentobarbital called for by Oklahoma’s procedure is more than enough to ensure inmates don’t feel the effects of the last two drugs.
“Five grams of any barbiturate is an enormous overdose in all cases,” the anesthesiologist said then. “The five grams of pentobarbital will cause a person to stop breathing.”
However, Dershwitz’s testimony was made before states were forced to utilize compounding pharmacies to acquire penotbarbital after the company manufacturing the drug put a stop to its distribution to corrections departments for use in lethal injections.
Compounding pharmacies mix or alter drugs mainly for individual purposes, such as removing a particular ingredient a patient may be allergic to or creating a liquid form of a pill for children.
While compounding pharmacies are required to be licensed by the state in which they practice, they do not have to register with the U.S. Food and Drug Administration, nor do their products have to be approved or tested by the FDA.
Cohen and others around the country raise concerns that the drugs could be potentially contaminated, causing severe pain to those executed.
As of Wednesday afternoon, the state Corrections Department, the defendant in the lawsuit, had no comment, said department spokesman Jerry Massie.