Tulsa Attorney BlogOklahoma Supreme Court Averts Constitutional Crisis

Oklahoma Constitutional Crisis AvertedIn an expedited ruling that averted a looming constitutional crisis, the Oklahoma Supreme Court on April 23, 2014, reversed a district court decision related to secrecy surrounding execution procedures. The decision means Oklahoma may execute two convicted killers without triggering a constitutional showdown.

A looming constitutional crisis emerged when attorneys asked a district court to declare unconstitutional a state law that prevents those condemned to die from finding out who made the drugs that will be used in their executions. The state Supreme Court stayed the execution of two men pending appeals of the district court ruling.

A day after the Oklahoma Supreme Court said the executions should be put on hold, Gov. Mary Fallin announced the court had no jurisdiction to stay the executions. She issued a seven-day stay of execution – potentially foreshortening the state Supreme Court’s open-ended stay.

Fallin said she would seek advice from the Oklahoma Court of Criminal Appeals – a near co-equal of the Oklahoma Supreme Court – on how to proceed. The state criminal appeals court had twice refused to delay the executions before the state Supreme Court issued the only stay of execution ever handed down by Oklahoma’s top civil court.

The governor, the criminal appeals court, and at least one state senator argued the state’s highest civil court had overstepped its authority. When it reversed the district court and lifted the stay of execution, the Oklahoma Supreme Court did not back down from the assertion that it has the final say in conflicts over jurisdiction.

“Our pronouncements in resolving jurisdictional conflicts with the Court of Criminal Appeals are final under Article 7, § 4 of the Oklahoma Constitution,” declares the unanimous Supreme Court decision of April 23, 2014.

See Also: Oklahoma Constitutional Crisis Imminent!

A Drug by Any Other Name is Just a Drug

On the reason for reversing the district court with regard to execution drug secrecy, the court narrowly framed the question at hand:

“[D]oes secrecy concerning disclosure of the source of the drug or drugs prevent inmates’ access to the courts to pursue an Eight Amendment claim?”

In the opinion of the Oklahoma Supreme Court, knowing the name of the drug is enough to allow inmates access to the courts where they may argue whether execution protocols inflict unnecessary or wanton pain. Defense attorneys who represent death row inmates have argued otherwise.

Availability of drugs used in executions has increasingly become a problem for death-penalty states that use lethal injections. Some have turned to compounding pharmacies that are not closely regulated by the FDA. Others have reportedly obtained execution drugs on an international gray market.

From the view of a person facing a lethal injection, knowing the name of drugs to be used in an execution provides no more assurance than a street-drug dealer’s claim that a bag of white powder contains heroin. Maybe it does, maybe it doesn’t. It might be pure or it might be diluted.

One inmate recently executed in Oklahoma said he felt a burning sensation as an execution drug coursed into his veins. Death-penalty opponents and death-row advocates have long criticized variations of a three-drug protocol Oklahoma plans to use in the April 29, 2014, executions. The three-drug method can cause excruciating pain to a paralyzed dying inmate, advocates say.

In that method, executioners inject a sedative, a muscle relaxer and a salt intended to stop the heart. The salt – potassium chloride – can be very painful once injected. If the sedative is ineffective, the dying inmate would be wrought with pain but unable to cry out because the second drug – a muscle relaxer – has rendered them paralyzed and unable to breath.

Unable to obtain sedatives previously used in three drug executions, Oklahoma reportedly plans to use a previously untried dose of midazolam in the April 29, 2014 executions. Impurities in the drug could cause pain, as could failure of the drug to work as intended.

Is Capital Punishment in Oklahoma Cruel or Unusual?

Oklahoma’s recent constitutional showdown centered around whether inmates had enough information to question execution protocols. The Oklahoma legislator who drafted a bill to impeach state Supreme Court judges who temporarily delayed the execution told reporters he was not concerned about suffering among condemned inmates during executions – feeding the condemned to lions would not even shock his conscience.

The United States Supreme court in 1890 concluded execution by electric chair is not an unconstitutionally cruel or unusual punishment and in 2008 similarly ruled that Kentucky’s three-drug execution protocol was not excessively cruel. State legislatures have been instrumental in steering execution protocols toward more humane means – driven in part perhaps by some egregiously botched executions.

What if any lingering effect the recent conflict among Oklahoma’s two top courts and the governors office may have remains to be seen. The nine Supreme Court justices and five Court of Criminal Appeals judges are all appointed for life by an Oklahoma governor, then must stand for retention in popular elections every six years.

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