July 24, 2020

Two States Ordered to Provide Execution Protocol Details

On May 5, 2020, U.S. District Court for the Western District of Oklahoma Judge Stephen Friot ordered Oklahoma officials to provide further details about how it plans to train prison staff that participate in executions, setting a June 5 deadline for the disclosure. The state had announced in February that it had updated its lethal injection protocol and found a new source for its execution drugs, also notifying the plaintiffs in ongoing lethal injection litigation of the updates. The notification, and subsequently reopened lawsuit, followed the terms of a 2015 joint stipulation. Though the stipulation also provided that Oklahoma can begin executions 150 days after the announcement of a new protocol, Oklahoma Attorney General Mike Hunter has stated that he will not schedule any executions until the conclusion of the litigation.

Oklahoma has had an execution hiatus since a series of botched executions in 2014 and 2015, including multiple executions in which the wrong drug was placed in the IV and in which the prisoner appeared to suffer severe pain. The updated protocol released in February relies on the same three-drug cocktail of midazolam, vecuronium bromide, and potassium chloride that Oklahoma had previously been using. A grand jury impaneled to examine the botched executions issued a report in 2016 citing multiple instances of negligent and reckless behavior by prison officials. According to the state’s February announcement, the updated protocol “includes recommendations” from the grand jury’s report.

Nebraska was also forced to cede ground in its fight to maintain secrecy around its execution protocol. On May 15, 2020, the Nebraska Supreme Court dismissed the appeal of the Nebraska Department of Correctional Services from a lower court decision ordering the agency to share documents regarding its acquisition of lethal injection drugs. The decision follows years of resistance from Nebraska in the face of public records requests filed by the Nebraska ACLU and two state newspapers. The State argued that, rather than redacting confidential, exempt information from its response to the requests, it had the right to refuse to turn over responsive documents altogether. Writing for the court, Justice Jeffrey Funke disagreed, emphasizing that, “An exemption from disclosure should not be misunderstood as an exception to the laws of the public records statutes.” The plaintiffs had requested information including inventory records and invoices.

The public disclosure of details about a state’s lethal injection drugs, such as the pharmaceutical companies providing the drugs, can play a central role in a state’s ability to carry out executions. In some cases, public pressure on pharmaceutical companies has led them to refuse to sell their drugs to states that will use them in an execution.