Oklahoma asks to delay executions after getting wrong drug

By SEAN MURPHY

Sept. 30, 2015 11:53 PM PT

Associated Press

McALESTER, Okla. — After a botched execution last year led to new procedures and a case in which the U.S. Supreme Court upheld Oklahoma’s drug combination, the state asked a court Thursday to halt its executions while it reviews why a wrong drug was sent for an inmate’s lethal injection.

Attorney General Scott Pruitt said Oklahoma needed time to sort out why its Department of Corrections received a shipment of potassium acetate instead of potassium chloride for Richard Glossip’s execution that was to occur Wednesday. Pruitt’s request to the state Court of Criminal Appeals came hours after Gov. Mary Fallin said she was confident the state could resolve its problems in time for an execution set for next week.

“Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions,” Pruitt said in a statement.

The court did not immediately rule on Pruitt’s motion. The next scheduled execution is Benjamin Cole’s on Oct. 7, followed by John Marion Grant’s on Oct. 28. Glossip’s execution was rescheduled for Nov. 6.

State officials said they learned Wednesday that Oklahoma’s drug supplier had shipped it potassium acetate instead of potassium chloride, the third of three drugs administered under the Department of Corrections’ guidelines. State protocols adopted after the botched execution of Clayton Lockett last year directed that the warden of the Oklahoma State Penitentiary “verifies execution inventory” two days before an execution.

“Certainly it raises a lot of the same questions raised by the Lockett execution, which is whether this department is competent to carry out its own procedures,” said Jen Moreno, a staff attorney with the Death Penalty Clinic at the University of California’s Berkeley Law School. “Minutes before the execution is supposed to start, that’s when they realize they don’t have the right drugs?”

Corrections Director Robert Patton said the prison system does not have state or federal authority to keep the drugs on site, so it arranges for shipments to arrive on the days that executions occur.

Oklahoma had been preparing to execute Glossip, 52, whom prosecutors said arranged for a handyman to kill their boss, motel owner Barry Van Treese, in January 1997 in Oklahoma City. Fallin granted an execution stay about an hour after the U.S. Supreme Court had cleared the way for the punishment to move forward by rejecting Glossip’s claim that the handyman had set him up.

After Lockett writhed on a gurney and struggled against his restraints during his April 2014 execution, prison officials concluded that an intravenous line at Lockett’s groin wasn’t properly set and he didn’t receive a full dose of deadly chemicals. The corrections department rewrote its guidelines and assured federal courts from Oklahoma City to Washington that its procedures were sound.

“That new protocol came out last September,” Moreno said. “For one year, this department has said they have fixed their problems and they have everything together and they’re prepared and they’ve reviewed and changed and made revisions, and then this happens.”

Fallin’s office said once corrections officials discovered the drug mix-up, her office, the attorney general and prison officials discussed what to do. Meanwhile, the U.S. Supreme Court was weighing Glossip’s plea for a hearing based on claims that his co-defendant had lied.

An hour after justices said the execution could continue, Fallin issued a stay so the state could look into whether potassium acetate could be used as a substitute or whether a batch of potassium chloride could be found.

Moreno said potassium acetate is not used in executions in the U.S.

“It’s a potassium salt of some kind, but no, it’s never been used in executions, and it’s not the same drug (as potassium chloride) at all,” she said.

Patton said he was informed by the provider of the chemicals, whom he would not identify, that the potassium acetate “was an acceptable substitution.” Fallin spokesman Alex Weintz said Thursday that the drug supplier was a pharmacist.

Dr. Alice Chen, an internal medicine specialist and executive director of Doctors for America, a Washington, D.C.-based group of more than 16,000 physicians and medical students in all 50 states, said both chemicals are used in significantly lower doses, but are not interchangeable.

“Just switching out one for the other ... that doesn’t make sense,” Chen said.

Fallin said Thursday that she wasn’t ready to talk about her level of confidence in the prisons department.

“I don’t think we should be pointing fingers right now because we don’t have details about who did what,” she said at a Capitol news conference in Oklahoma City that focused on another topic. “What we do need to make sure is that we have the protocols in place, that we follow those protocols and that we make sure that we uphold the law.”

Patton said he’s confident that the protocols worked.

“Nothing failed in the protocol. The protocol worked exactly as it was supposed to work,” he said. “I had a question, I used the word ‘stop,’ as it says in the protocol, explained to the attorney general’s office, explained to the governor’s office, and then asked for a stay of execution until we can figure it out.”

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Associated Press writer Tim Talley contributed to this report from Oklahoma City.

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