Charles Warner’s execution five years ago today, in which an unapproved drug was used in the lethal cocktail that put him to death, was one of a series of bungles that has since halted the death penalty in Oklahoma.
And no one is saying much about when it will resume.
Spokespeople for the Oklahoma Department of Corrections, Attorney General’s Office and Gov. Kevin Stitt all told The Frontier recently the three groups had begun to discuss a path forward for the resumption of executions, but none offered examples of what that road might consist of.
“We continue to work with the Department of Corrections to finalize the new execution protocol for nitrogen hypoxia and can’t offer any details on the device at this time.” – Attorney General’s Office spokesman Alex Gerszewski
“Conversations about resuming the death penalty have been ongoing with the Attorney General and the Department of Corrections. We do not have a timeline to offer on this matter at this time.” – Baylee Lakey, Communications Director for Gov. Kevin Stitt
“These communications and conversations have concerned the best path forward for the State of Oklahoma to resume capital punishment in a manner that fits with legal and constitutional requirements. ODOC continues to work with the Attorney General’s office on developing a method and protocol that meets those requirements — and obtains justice for victims of inmates sentenced to death.” — DOC spokesman Matt Elliott
While the way forward is somewhat murky, the holdup is less so. In March 2018 Attorney General Mike Hunter, alongside then-DOC director Joe Allbaugh, held a press conference to announce they were abandoning the use of lethal injection in capital punishment to move to the “safest, the best, the most effective method available”: inert gas inhalation.
Inert gas inhalation is a process in which the oxygen that a person normally breathes is replaced with another gas, such as nitrogen. In theory, the person would quickly get lightheaded and pass out. Unless oxygen is quickly reintroduced to their system, they suffocate and die.
Proponents of that plan say the process is painless and easier to conduct than lethal injection. Opponents point out that nitrogen hypoxia has been called inhumane in animal euthanasia. Oklahoma, which in the 1970s became the first state to use lethal injection in an execution, would also be the first state to kill an inmate by use of inert gas.
The switch was supposed to quickly let Oklahoma resume executions — Allbaugh said at the time that he hoped to have the new protocol ready for the courts to review “in 90 to 120 days,” which he felt might let the state begin executions before the end of 2018.
Almost two years later, it’s not clear if the state is much closer to that resumption and officials are facing a problem similar to one that plagued them during the end of the lethal injection era — no one wants to give them the tools to conduct an execution.
Hunter told television station KFOR last year that manufacturers the state spoke with were afraid of public blowback should their equipment be connected to the death penalty. The Frontier reported last April that Hunter had told district attorneys during a meeting the state would likely have to build an “IGI” device itself.
Hunter’s office has since not answered questions about that device or the process of building it. Once the new death penalty protocol is finalized and announced, a 150-day stay will begin, along with, presumably, court challenges that will make it difficult — but not impossible — for executions to resume before the end of the year.
Dale Baich, one of the attorneys representing some Oklahoma death row prisoners, told The Frontier last year that he felt Oklahoma — which pioneered the use of lethal injection decades ago — was again poised to “experiment” with a new method.
“No one really knows if nitrogen works,” Baich said.
He also said at the time he doubted 2020 would prove to be a viable year for executions to resume, mentioning both the 150-day stay and ensuing litigation.
“Practically speaking, when the protocol is made public, we have the opportunity to ask the federal court to review it and there would be litigation,” he said. “The state also committed to not asking for execution dates for five months after it makes the protocol available … it’s not like they can say ‘Here’s the protocol, ready, set, go.’”.
Stitt told The Frontier last year that he was a “supporter of the death penalty for the most heinous of crimes,” mentioning infamous Oklahoma City bomber Timothy McVeigh and “people who commit mass murders” as being among those deserving of capital punishment.
On Tuesday, Rep. Jason Dunnington (D-Oklahoma City) filed legislation that would remove the death penalty as a sentencing option in capital cases.
“I’m proud to be a part of the important progress we’ve made toward criminal justice reform,” Dunnington said in a media release. “Oklahomans are becoming more aware of the wasted costs of capital punishment, a system that provides no deterrent to crime while flushing millions down the drain that could be better spent on responses to violence that actually work.”
Dunnington also cautioned Oklahomans about falling for “clickbait” bills on Monday on Twitter.
“Just a reminder, not every bill filed will get voted on, & most that get voted on are not in their final form. Don’t fall for the #clickbait. The legislative process takes time & citizen input is always important,” he wrote.
Robert Dunham, the executive director of the Death Penalty Information Center, told The Frontier that the difficulty Oklahoma has faced in resuming executions is similar to many other states.
“It’s easily understood why a drug company wouldn’t want its product disparaged by being associated with executions, but the difficulty states like Oklahoma are facing with nitrogen gas shows a corporate reluctance that goes beyond the hippocratic oath,” Dunham said. “That in and of itself tells us something significant as far as a change in American attitudes toward the death penalty.”
In December, the Death Penalty Information Center released a report showing that only 22 people were executed across the United States in 2019, the fifth-straight year with fewer than 30 executions. Only seven states (Texas, Tennessee, Alabama, Georgia, Florida, South Dakota and Missouri) conducted an execution in 2019, according to the report.
Nine of those 22 executions occurred in Texas, a state that has seen a decline in recent years in executions and new death sentences according to DPIC data.
Dunham said there was only one new death sentence issued in Oklahoma in 2019, and none in Oklahoma County, a place where the sixth-most new death sentences nationwide have been granted since 2015.
Dunham said that favor for the death penalty has declined (a recent Gallup poll showed 60 percent of U.S. residents now favored life in prison without parole over the death penalty) in part because of the difficulties states have faced conducting executions. But also because attitudes are changing toward criminal justice in general.
“There is a movement toward fairer and more reasonable exercises of government authority,” Dunham said. “If you are going to take a more careful approach to punishment in general, if you are going to be fairer about it, you will end up charging cases less harshly. And polling shows that is by and large what people want.”
Whether that is true in Oklahoma remains to be seen. Despite the now five-year gap between executions in the state, voters still overwhelmingly elected to enshrine the death penalty in the state’s constitution in 2016.
In 2018, during the press conference Allbaugh and Hunter held to announce the planned use of nitrogen hypoxia, Allbaugh mentioned the scathing 2016 grand jury report that criticized the lack of information given from state officials related the execution-related failures. The former DOC director, who has since been replaced by Scott Crow, said he couldn’t “think of anything that would inhibit total transparency” on the use of the death penalty.
But Dunham is skeptical.
“You have to take anything said in Oklahoma (related to the death penalty) with a grain of salt,” Dunham said. “You won’t know what Oklahoma is doing until they do it. Given what has happened in the past, no one can have confidence in their process unless they do it in an open way.”