Robert Patton, then-director of the Oklahoma Department of Corrections.
Sue Ogrocki / AP
A grand jury issued a scathing report Thursday on the “cavalier” way Oklahoma has attempted to carry out two recent executions. Although damning, the issues it raises are by no means unique to Oklahoma. Many are the same problems other death penalty states are facing.
The investigation, led by the attorney general’s office, began after the state was forced to reveal that it had used the wrong drug in the execution of Charles Warner, and nearly used it again in the scheduled execution of Richard Glossip. The 106-page report of the grand jury found carelessness and a dismissive attitude toward established procedures and the inmates’ rights.
The grand jury reached the conclusion that an underlying cause of the problems was the extreme, and sometimes arbitrary, level of secrecy in how the department carries out executions. In recent years, states have expanded the secrecy to encompass its drug suppliers, claiming threats and protests require it.
Finding it “surreptitious” and “questionable at best,” the grand jury said the secrecy “contributed greatly to the Department’s receipt of the wrong execution drugs.” The report highlighted four problems that grew out of the secrecy surrounding the execution process.
Limiting the paper trail complicates the death penalty in Oklahoma, as well as other death penalty states.
“[T]his investigation revealed that the paranoia of identifying participants clouded the Department’s judgment and caused administrators to blatantly violate their own policies,” the grand jurors wrote.
The department of corrections’ general counsel, David Cincotta, ordered the drugs from the pharmacist over the phone. It limited the paper trail, and perhaps the chance that someone would find out who was selling the drugs, but it also meant the pharmacist was never provided a written order, a prescription, or a copy of the execution protocol — all of which would have stated which drug should have been ordered.
Then Cincotta paid the pharmacist nearly $1,000 in cash in person for the drugs and kept scant receipts of the deal.
“The Department did not document its contract for the purchase of execution drugs… with either a written contract or a purchase order in conformity with” state law, the report said. ”Had the requirements of [state law] been followed, the Pharmacist should have had no question regarding which drugs to order for the Department.”
The grand jury also discovered the secrecy was arbitrary and sometimes made no sense. One corrections employee said he couldn’t include even the name of the drug on a form because of secrecy reasons — even though the same form included the signature of an executioner.
“[H]e scribbles on it,” was the agent’s excuse for why the signature would be okay to have written down.
The extreme secrecy is something nearly all death penalty states have moved toward. Both Arizona and Missouri pay its executioners in cash. A BuzzFeed News investigation found that a Missouri corrections employee had paid more than $250,000 in cash to executioners, likely violating federal income tax law, and that the fund’s account was being mismanaged.
In that state, the secrecy allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices.
Other states have used the secrecy to purchase drugs illegally. Texas and Arizona are currently fighting with the FDA over drugs the states purchased from a supplier in India.
Georgia has a secret compounder mix up drugs for specific executions, but had to call one off because particles were floating in the syringe. The state argued it was due to temperature, and attempted to withhold evidence that disagreed with that theory. The state did not reveal who made the drug.
The secrecy leads to another issue: It severely limits oversight from the press, regulatory agencies, and even from itself.
“[W]hen you say completely hidden and state government in the same sentence, you’ve got a problem,” a corrections deputy general counsel told the grand jury.
In other death penalty states, few people within state government are allowed to know the identity of the supplier, and those individuals tend to be high-ranking or the department’s attorney, meaning there’s nobody above them who could provide oversight.
After Georgia obtained faulty lethal injection drugs, its attorney general promised to do a transparent investigation into his client. Part of the investigation involved having a department of corrections attorney conduct an experiment to see if temperature was the cause of particles floating in the syringe. If temperature was not a cause, that would hint the problem lied with the drug-maker.
Once the results did not fit with the theory that the drug was compromised because of the cold temperature it was stored in, the state attempted to withhold the results from the public, the media, and the court.
The Oklahoma grand jury report mocked the required “quality assurance reviews” that occurred after executions. The state employee conducting the review wasn’t allowed to know the identity of the supplier and couldn’t complete that portion of the review.
“The Quality Assurance Review lacked substance and amounted to little more than a cursory review in a process requiring greater oversight,” the report found. “As with most every other aspect of this process, the bare minimum was completed.”
Oklahoma was even more compromised when it came to oversight. The office of inspector general, which ordinarily could provide accountability, actively participates in executions — and was criticized in the report. The grand jury suggested an independent auditor be put in place to conduct reviews, and that an ombudsman be appointed during executions.
Before the execution attempts being investigated by the grand jury, the prior execution — of Clayton Lockett in 2014 — was also a botch, with the inmate writhing on the gurney and speaking. He didn’t die until 45 minutes after the execution began.
The investigation into that botch was conducted by Gov. Mary Fallin’s Department of Public Safety — which also plays a role in executions.
Lethal injection decisions are made not by medical experts, but by lawyers.
The report showed Fallin’s office was concerned most by optics. Her general counsel, Steve Mullins, vehemently pushed for using the wrong drug in the second execution so they wouldn’t have to disclose the problem — that the drug had been used in the prior execution — to the public.
“The Governor’s General Counsel was also concerned using the phrase ‘wrong drug’ would require having to inform people the wrong drug had been used in [Charles] Warner’s execution,” the grand juror’s wrote.
In attempting to persuade Attorney General Scott Pruitt to allow them to use the wrong drug, Mullins made the case that the two drugs — potassium chloride and potassium acetate — were similar enough to be used interchangeably and told the attorneys to “Google it.”
Oklahoma, like other states, has their legal department craft the execution protocol. California attorneys recently crafted a new execution protocol, allowing drugs that have never been used in an execution to be tried out. In one email, attorney Kelly McClease called media attention to a 26-minute execution in Ohio “a big hoopla” that is “beyond ridiculous.”
Witnesses reported the inmate was gasping, fighting for breath, and clenching.
“What they witnessed was snoring,” McClease wrote in an email to colleagues. “It’s very common with Midazolam and seen quite often in surgery.”
Like in Oklahoma’s botched execution of Lockett, having lawyers write the procedures can lead to confusion on definitions of terms that aren’t necessarily used in the medical world.
After the Lockett execution, an attorney in the department of corrections said he used “Wiki leaks or whatever it is” to research which drugs to use.
In Thursday’s report, the grand jury noted, “In particular, the ‘Definitions’ section of the Execution Protocol was, and is, woefully inadequate. … The ‘Definitions’ section … only provides definitions for two words used in the Protocol, ‘stay’ and ‘stop.’”
To compound the problem, the person conducting the post-execution assessments has no specialized medical training.
The public doesn’t see get to see problems until after a disaster has happened. And then the attention is focused on the specifics of that issue, not the full process.
The errors that occurred in Oklahoma are particularly disturbing because they happened immediately after its previous botch, causing a national uproar, an investigation and legal challenges that went all the way to the U.S. Supreme Court. In spite of the intense scrutiny, Thursday’s report found the employees still had little understanding of the procedures.
“This investigation has revealed that most Department employees profoundly misunderstood the Protocol,” the grand jury report noted. “Although some … were able to intelligently testify regarding the Protocol, the majority simply could not.”
The investigation after Lockett’s botched execution found that botch was caused mostly by IV issues. The report and legal battles made it unlikely that the state would make the same mistake again.
Indeed, this time, the doctor told the grand jury that, for Warner’s execution, he was focused on making sure that didn’t happen again — to the detriment of everything else.
“I had several tasks, but my primary goal was getting those IVs started,” the doctor testified before the grand jury. “I knew that was where the landmines were . . . . that’s what I was thinking about for hours and days leading up to this event. Again, I knew I had other roles.”
“I should have noticed it. I didn’t notice it. And I feel terrible for that.”