The Oklahoman

Execution change won’t end questions

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THE execution of Clayton Lockett in April 2014 prompted questions, legal and otherwise, about Oklahoma’s ability to carry out the ultimate punishment. These are sure to continue following the state’s decision to use nitrogen gas for future executions.

Attorney General Mike Hunter and Department of Correction­s Director Joe Allbaugh announced the change last week. The difficulty in obtaining the three drugs used in Oklahoma executions, a longtime problem, contribute­d to the decision to go in a different direction.

Hunter and Allbaugh are following a recommenda­tion by the state’s multicount­y grand jury, which in 2016 said nitrogen gas would be easy and inexpensiv­e to obtain, and simple to administer. Grand jurors also said scientific research showed the procedure would be quick and seemingly painless.

The Legislatur­e, amid concerns stemming largely from the Lockett execution, passed a law in 2015 allowing nitrogen hypoxia for executions if drugs became unavailabl­e or lethal injection was declared unconstitu­tional.

Lockett writhed on the gurney, moaned and clenched his teeth, and wasn’t pronounced dead until 43 minutes after the procedure began. That led to a state investigat­ion that revealed, among other things, a lack of training among execution team members and faulty insertion of the intravenou­s line. A three-judge panel of the 10th U.S. Circuit Court of Appeals later said the execution was a “procedural disaster.”

Oklahoma also used the sedative midazolam for the first time in Lockett’s execution, triggering lawsuits from other death row inmates who said the drug could lead to an unconstitu­tional level of pain. The U.S. Supreme Court rejected that argument in 2015.

The state executed an inmate without incident in January 2015, but no one has been executed since. It later was found that a wrong drug was used inadverten­tly in that case, then the same wrong drug was almost used again in a planned execution in September of that year. A doctor’s discovery of the mistake led to all executions being put on hold.

After investigat­ing the drug mix-up, the multicount­y grand jury blamed egregious failures by DOC officials, subpar execution protocol and other issues. A new protocol, to include the new method of death, is a work in progress.

Oklahoma in 1977 became the first state to approve lethal injection. Now it may be leading the way on another method. Challenges are a certainty because this process is new. Mississipp­i has legalized nitrogen gas as a backup for its executions, and Alabama’s legislatur­e wants to provide the option of being executed with nitrogen gas. But no state or country has used nitrogen for executions.

Sixteen condemned Oklahoma inmates have exhausted their appeals. They don’t have to start watching the calendar yet, however. Hunter and Allbaugh said executions would resume no earlier than the end of the year. The safe bet is that challenges will ensure it’s much later than that before one is actually carried out.

The goal, Allbaugh says, is for executions to be done “properly, fully transparen­t and as humane as possible.” Those can’t simply be goals; all three are a must as the state charts a new path for performing its most solemn task.

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