Oklahoma high court stays executions amid questions over drug secrecy

The Oklahoma supreme court on Monday stayed the executions of two men who challenged the constitutionality of the state's execution drug secrecy.

"We are relieved, and extremely grateful to the Oklahoma supreme court for its reasonable decision to stay the scheduled executions ... With today's stay, the Oklahoma supreme court will be able to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding lethal injection procedures in our state," their attorneys Susanna Gattoni and Seth Day said in a statement following the decision.

Clayton Lockett was scheduled to die at 6pm on Tuesday, and Charles Warner on April 29.

The court in a 5-4 decision said the stay is issued until "final determination of all issues presently pending before this court ... along with all issues that may be brought by [the corrections department] ... and any legal challenges that may arise as a result of this court's resolution of those issues are actively litigated."

The inmates have sued over the constitutionality of Oklahoma’s secrecy about execution drugs, and an Oklahoma county district court judge has ruled that keeping the source of the drugs confidential is a violation of their rights. The state is defending a law that allows it to keep the source of the drugs secret, on the argument that suppliers would be in danger if their identities were made public.

"The Oklahoma supreme court’s decision to step up to the plate and grant a stay deserves celebration despite the series of events that originally led to this judicial stand-off," said Deborah Denno, a death penalty expert at Fordham University. "May the supreme court’s move be a harbinger of other, more responsible, decisions to come."

Lockett, 38, was convicted of killing a 19-year-old woman in 1999. He was also convicted of rape. Warner, 46, was convicted of raping and killing an 11-month-old baby in 1997.

The Oklahoma county district judge ruled in March that the secrecy surrounding the drug source violated the inmates' right to access the courts. The state appealed that ruling on Friday to the state supreme court calling the ruling an "overbroad interpretation" of the right to access.

The Oklahoma court of criminal appeals and the state supreme court last week both declined to stay the executions, with each court saying it did not have the authority to grant a stay. Lawyers for the two men appealed again Monday to the state supreme court, which then issued the stay.

"As uncomfortable as this matter makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure," the state supreme court wrote.

Justice Steven Taylor wrote a dissenting opinion that the appellants "have maneuvered this court right where they set out to put us, and that is, for the first time in this court's relevant history, in the middle of a death penalty appeal. We have never been here before and we have no jurisdiction now."

Before the ruling, the inmates' lawyers said in a statement it would be "unthinkable" to execute them before the state supreme court considers the constitutional issues.

"The extreme secrecy surrounding lethal injection in Oklahoma makes it impossible to know whether executions would be carried out in a humane and legal manner," the lawyers said.

The state has said Lockett and Warner will die, and that the question is how and when.

"The citizens should not see their criminal justice system derailed and subverted by criminal defendants who have completely exhausted the entire range of appeals and processes required by the US and Oklahoma constitutions due to baseless speculation of theoretical harms raised in improper venues," the state said in a filing.

The state plans to use an untried dose of midazolam in a three-drug lethal injection method to kill Lockett and Warner.

Unable to find the drugs it needed to kill the men, the state changed its protocol in March to allow five lethal injection methods. The state can use four three-drug combinations, or a single dose of pentobarbital.

The state has typically fought legal battles when it wanted to revise the lethal injection method, according to a document the corrections department wrote to update the state board of corrections in 2012.

“As noted, Oklahoma has been required to litigate every change in the lethal injection protocol and anticipates future litigation for each new change,” the document states.