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Oklahoma Plays Torture Roulette With Lethal Injection

Anna Arceneaux,
Senior Staff Attorney, ACLU Capital Punishment Project
Cassandra Stubbs,
Director Capital Punishment Project,
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January 15, 2015

The logical response to Clayton Lockett’s bloody, pain-filled, unconstitutional execution in Oklahoma eight months ago would be to prevent such torture from happening again. But Oklahoma has another idea for its first execution since Lockett’s. Instead of learning from its mistakes, the state will administer midazolam, the same drug used in Lockett’s horribly botched execution.

Barring intervention from the courts or the governor, Oklahoma will execute Charles Warner tonight. The state will give Warner midazolam as if it worked for Lockett, as if it had produced the state of “deep unconsciousness” the U.S. Supreme Court has recognized as a vital step before the other, excruciatingly painful drugs in the lethal protocol. But the medical use of midazolam is to relieve anxiety, not put people to sleep. Midazolam has failed not only in Oklahoma but also in Ohio, Arizona, and Florida. With that track record, midazolam should be retired from lethal injection, everywhere, forever. Indeed, Ohio has wised up and dropped the drug from its protocols. But Oklahoma persists, playing torture roulette tonight with Warner, who originally had been scheduled to be executed right after/the same night as Lockett.

Though midazolam is a relatively new drug in the lethal injection scene, it quickly earned a troubling reputation. Florida was the first to experiment with midazolam, in the execution of William Happ, despite warnings that the drug would not work. Even after he was ruled unconscious, he moved his head back and forth, suggesting that he was in fact conscious for the administration of the extremely painful drugs that followed.

After receiving a drug combination that included midazolam, Dennis McGuire in Ohio took over 20 minutes to die. He moved, clenched his fist, and gasped.

Joseph Wood in Arizona was given an extraordinary amount of midazolam in that state’s experimental two-drug protocol—15 doses—yet his execution lasted for more than two hours. He gulped and gasped hundreds of time for air.

Not only will Oklahoma use midazolam again, it will then administer vecuronium bromide, a drug meant to paralyze Warner. This will make it impossible to know if he is experiencing pain when the final lethal drug is administered.

In Mr. Warner’s case and others, legal challenges to the states’ unregulated experimentation have largely fallen on deaf ears, despite botch after botch. Earlier this week, the 10th Circuit denied Warner’s request to stop his execution, and his case now moves to the U.S. Supreme Court.

Enough is enough. In the seven years since the U.S. Supreme Court upheld the constitutionality of a lethal injection drug protocol in Baze v. Rees, states’ protocols have completely changed. In response to pharmaceutical companies electing to make their products unavailable for use in executions, states have turned to untested, novel drug combinations. No state, in fact, still uses the protocol in Baze, which the court approved largely on the assurance that the prisoner would be unconscious before the lethal drugs were administered and would therefore not experience the severe pain they’re known to cause. Given the recent problems with midazolam, we have every reason to doubt that Warner will be unconscious. Under these troubling conditions, Warner’s execution carries a substantial risk of harm.

We can only hope that the U.S. Supreme Court is listening and will stop Warner’s execution until Oklahoma can prove conclusively that its lethal injection protocol meets constitutional standards. It’s time for the human experimentation to end.

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