The state of Oklahoma has a history fraught with botched executions. During a lethal injection procedure in 2014, death row prisoner Clayton Locket convulsed, exclaiming that he felt his whole body burning. After 43 minutes of pain and writhing, Lockett eventually died of a heart attack. The following year, Oklahoma called off the execution of Richard Glossip shortly before it was set to put him to death after realizing that it had ordered potassium acetate instead of potassium chloride and had unknowingly used the wrong drug in the execution of Charles Warner earlier that year. In response to these errors, the state halted executions for several years until October 2021, when Oklahoma executed death row prisoner John Grant by lethal injection using the drug midazolam. Witnesses reported that Grant vomited several times after receiving the drugs, signaling another botched execution. According to his autopsy report, Grant had “frothy parenchymal fluid” in his lungs and “marked interstitial congestion,” suggesting a death that was anything but pain free. According to Dr. Mark Edgar who has reviewed more than 30 autopsies of death row prisoners where midazolam has been used, this type of pulmonary fluid buildup produces sensations of “doom, panic, drowning, and asphyxiation.”
Prior to Grant’s execution, a group of 28 death-row prisoners filed a lawsuit arguing that midazolam fails to adequately anesthetize an individual, thus violating the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment when used as part of a lethal injection protocol. The team of lawyers representing the prisoners includes pro bono counsel from Crowell & Moring who also represent former Oklahoma death-row prisoner Julius Jones in his high-profile innocence case and won a rare grant of clemency from the governor in November 2021.
On June 6, 2022, following a six-day trial, Judge Stephen Friot of the U.S. District Court for the Western District of Oklahoma ruled against the 28 death-row prisoners. Judge Friot explained that the prisoners fell short of making their case that midazolam does not adequately render the prisoner insensate or unable to feel pain, creating a risk of severe suffering. Plaintiffs presented extensive expert testimony by anesthesiologists and pharmacologists presented by plaintiffs showing that prisoners not properly anesthetized become paralyzed and feel excruciating pain as the final drug is injected to stop the heart.
In addition to the controversy over midazolam’s efficacy, Jennifer Moreno, one of the attorneys representing the prisoners, questioned the utility of the second drug in Oklahoma’s three-drug lethal injection protocol: vecuronium bromide. Oklahoma uses three drugs for lethal injection: the sedative midazolam, the paralytic vecuronium bromide and potassium chloride, which ultimately stops the heart. According to Moreno, vecuronium bromide “serves no legitimate purpose other than to make it appear as if death is occurring peacefully while hiding any suffering and expressions of pain that occur.”
Attorneys for the prisoners have indicated that they are exploring options to appeal the district court’s decision. Meanwhile, the Oklahoma Attorney General's Office said that it intends to seek execution dates for all 28 prisoners.