JUST ONE DAY after Oklahoma Gov. Mary Fallin suddenly halted Richard Glossip’s execution, citing last-minute concerns over the state’s lethal injection drug protocol, Oklahoma Attorney General Scott Pruitt sought an indefinite stay on all scheduled executions in the state.
“The Attorney General needs time to evaluate the events that transpired on September 30, 2015,” Pruitt wrote in a request filed with the Oklahoma Court of Criminal Appeals on Thursday, October 1. In particular, Pruitt cited the acquisition by the Oklahoma Department of Corrections “of a drug contrary to protocol” and its “internal procedures relative to the protocol.” In what has been described as a “mix-up,” officials at the Oklahoma State Penitentiary obtained a box of potassium acetate, a drug with applications that range from de-icing runways to mummification, rather than potassium chloride, the final drug in Oklahoma’s three-part lethal cocktail.
In a press conference Thursday, Department of Corrections Director Robert Patton struck a defensive tone, blaming the state’s drug supplier for the mistake, but would not identify where the drugs came from. (As in many other death penalty states today, Oklahoma’s drug supplier is secret under state law.)
But the official explanation left many unanswered questions about how Oklahoma came so close to killing Glossip with a drug that does not appear in its official protocol, upheld by the U.S. Supreme Court in Glossip v. Gross just a few months ago. It remains unclear what officials knew and when they knew it. And a closer look at the protocol, which was revised after the disastrous execution of Clayton Lockett in 2014, shows that Oklahoma remains ill-equipped to follow its own guidelines and avoid botched executions.
Glossip was sentenced to die for the 1997 murder of Oklahoma City motel owner Barry Van Treese, based almost entirely on the word of the confessed killer, a 19-year-old motel maintenance man and meth addict named Justin Sneed. Sneed admitted that he beat Van Treese to death with a baseball bat, but said that Glossip made him do it. In exchange for testimony against Glossip, Sneed was given a life sentence, which he is serving at a medium security state prison. (For details on the case, see The Intercept’s July investigation.)
ON THURSDAY, according to The Oklahoman, Gov. Fallin told reporters that a doctor at the prison first noticed the drug error in the “late morning,” after the prison received the drugs. The doctor “did the right thing,” Fallin said. He “told the legal counsel of the Department of Corrections, who called the attorney general’s office. Then they notified my office and I made the decision not to go forward.”
(According to The Frontier, a spokesperson for the governor admitted that officials “briefly considered” moving forward with Glossip’s execution using the potassium acetate — a claim Robert Patton dismissed as “crap.”)
Patton told reporters that the state’s drug provider informed the DOC back in August that it “had access to the necessary drugs” to carry out Glossip’s execution, which was then scheduled for September 16. That execution was stayed just hours before Glossip was set to die. But Patton said the errant potassium acetate did not arrive until Wednesday, September 30, the day of Glossip’s new execution date. The execution drugs were delivered “in a sealed box,” he said. It wasn’t until 1 p.m., just two hours before the execution was set to begin, that the DOC opened the box and discovered the mistake. The discrepancy between this version of events and the governor’s was not explained.
Officials spoke to the provider, Patton said, “whose professional opinion was that potassium acetate was interchangeable with potassium chloride at the same quantity.” But nowhere is potassium acetate mentioned as an approved drug in the state’s protocols, a fact that created a “legal ambiguity,” in Patton’s words, leading to Glossip’s last-minute reprieve.
Even taken at face value, however, the scenario Patton described still apparently violates Oklahoma’s official execution protocol, which dictates that the warden must review the prison’s “execution inventory” two days before any execution and oversee “equipment checks.” According to the protocol, Warden Anita Trammell, who was present at Clayton Lockett’s botched execution last year, should have verified on Monday, September 28, that the three drugs had been accounted for.
And while Patton told reporters that the prison does not have “state or federal authority” to store execution drugs on-site, in fact, the protocol makes clear that “upon receipt of the Order Setting Execution Date,” the state is required to “ensure the chemicals are ordered, arrive as scheduled and are properly stored.” It stands to reason that, in Glossip’s case, that requirement would have been fulfilled by the time of his previous scheduled execution, on September 16, and certainly well before 1 p.m. on September 30.
Moreover, the protocol states that the DOC director — Patton — has “sole discretion” as to “which chemicals shall be used,” and requires that the condemned prisoner be informed of that decision 10 days prior to the execution. (Technically, in addition to the three-drug protocol upheld by the Supreme Court, which includes midazolam, Oklahoma has four additional approved drug combinations at its disposal — but none contains potassium acetate.) Needless to say, the DOC “did not give us notice that they were substituting drugs,” attorney Dale Baich told The Intercept at the prison following the stay.
Baich is among the team of federal public defenders who represented Glossip and other Oklahoma prisoners in their Supreme Court challenge of the state’s use of midazolam in executions. He pointed to an August 11 letter he and his colleagues received from the Oklahoma attorney general’s office, confirming that Oklahoma’s Department of Corrections had on hand “sufficient drugs” to carry out not only Glossip’s execution but also two other executions scheduled for October. “The drugs are manufactured and not compounded,” wrote John D. Hadden. “None of the drugs will expire prior to the current execution dates of these three inmates.”
Why these drugs were suddenly unavailable on September 30 remains a mystery. In his statements to reporters on Thursday, Patton attempted to explain the discrepancy, saying not only that the state didn’t have the “authority” to store drugs, but also, curiously given the last-minute nature of the stay, that the box containing the drugs “was never opened at the facility,” and that after the execution was halted, the drugs were “returned to the provider.”
Asked to explain Patton’s insistence that the DOC does not have authority to store the drugs at all, Fallin’s communications director, Alex Weintz, told The Intercept, “DOC is responsible for execution chemicals once they are delivered to their facility, and may store them once they are delivered.” But he said the “chemicals are not legally allowed to be delivered until the day of the execution.” Weintz was unable to identify a particular law or regulation that would prevent the drugs from being delivered. “You’ll need a DOC lawyer to walk you through that,” he said.
Patton has claimed that the prison does not have the proper DEA license to store the drugs. But Baich says this is “misleading.” Among the state’s sanctioned execution drugs, only midazolam requires a DEA license. The rest could be stored on-site. In response to a query from Buzzfeed asking whether the prison could obtain the drugs in more than one shipment, DOC spokesperson Terri Watkins said, “We receive the drugs together,” and declined to elaborate.
Although Weintz told The Intercept that the approach to storing execution drugs differs from the handling of other drugs at the prison, one policy specifically referenced within Oklahoma’s execution protocol states that top officials at each DOC facility must “ensure the safekeeping, storage, and disposal” of drugs confiscated or otherwise found in state prisons, and that prison supervisors “may arrange for storage” by other law enforcement authorities. This suggests that the Oklahoma State Penitentiary has the capacity, at least, to store a sedative like midazolam. If it is indeed the case that the law forbids the drug from being delivered until the day of the execution, it is hard to understand why the state’s execution protocol would require verification that supplies are on hand two days before the actual execution.
FOR ALL THE LINGERING questions, the attorney general’s actions Thursday marked a bizarre twist in what had already been a dramatic 24 hours. At 3 p.m. Wednesday, defense attorney Don Knight was consoling members of Glossip’s anguished family outside the prison as they awaited what they thought was his imminent execution. The next day at that hour, with Glossip still alive, Knight was back in his office in Littleton, Colorado, when he heard about the stay request. “How do you like that?” Knight told The Intercept on the phone Thursday. “That is fabulous. That is fabulous.”
Dale Baich, who has challenged the state’s lethal injection protocol on Glossip’s behalf, was on a flight back home to Phoenix when he received the email from the attorney general’s office containing its motion to the court.
Both Baich and Knight have questions about the discrepancies between the state’s version of events and the official protocol, which Patton claims was not violated. “There seems to be some conflict or confusion between what they said in August — we have [the drugs] — and what they are saying now,” Baich said on Thursday. The lack of transparency when it comes to the state’s drug supply adds an additional, impenetrable barrier to finding out the truth. “That’s the problem,” Baich said, adding, “It’s got to undermine the public’s confidence in the ability of the Department of Corrections to competently carry out an execution.”
Then there is the fact that Attorney General Pruitt has displayed a track record of questionable conduct in seeking to carry out executions. In its briefs to the Supreme Court in Glossip v. Gross last spring, Pruitt’s office claimed that Oklahoma was “forced” to switch its execution protocol to include midazolam after supplies of a different, more commonly used drug, pentobarbital, became unavailable. The state’s supplier “came under intense pressure from death penalty opponents,” the attorney general’s brief explained, and had stopped shipping the drug to Oklahoma. But in May, Buzzfeed revealed the heavily redacted letter the state used to back up this claim, showing that it had been written to Texas, not Oklahoma. The supplier in question, Woodlands Compounding Pharmacy, not only denied writing the letter, but said that claiming the company provided execution drugs to Oklahoma would be “an act of libel and/or slander.” Pruitt dismissed the letter as an “inadvertent” error.
In a different letter, revealed on the same day that oral arguments were presented in Glossip v. Gross, a drug company called Akorn, which supplied the drugs used to kill Clayton Lockett, wrote Pruitt’s office and demanded that Oklahoma return its supply of midazolam “for a full refund.” It included a line printed in italics and bold: “Akorn strongly objects to the use of its products in capital punishment.” As The Intercept reported in April, the letter was dated March 4, 2014 — weeks before oral arguments in Glossip — meaning that the state defended midazolam before the Supreme Court as a perfectly appropriate drug for lethal injections while knowing that at least one of its own suppliers disagreed.
FOR NOW, three men in Oklahoma who thought they were soon going to die at the hands of the state have been granted a reprieve. In addition to Glossip, who initially faced a new execution date of November 6, two other men had dates scheduled: Benjamin Cole on October 7, and John Marion Grant on October 28. There was some speculation in the press and in online forums that the state’s odd 37-day stay for Glossip was intended to provide the option of using nitrogen gas, which would be permitted under a new law that goes into effect early next month. But the DOC’s Robert Patton said the state is not ready to start executing prisoners that way.
On Friday, the Oklahoma Court of Criminal Appeals — the same court that has repeatedly denied Glossip an opportunity to present new evidence of his innocence — granted Pruitt’s request for the indefinite stay. The court found “good cause” to stay the impending executions and directed the state of Oklahoma “to keep this Court advised as to the status of each case, including any adjustments to the execution protocol.”
In a statement on behalf of Glossip’s legal team, Don Knight said, “We are relieved. We hope more people will come forward with the evidence of Richard’s innocence.”