Status and Future of Lethal Injection Protocol Oklahoma Department of Corrections January, 2012

Prior to 2010, Oklahoma's lethal injection execution protocol was regularly challenged by opponents of the death penalty. Because of these challenges the agency established a longer waiting time for the first sedative drug to take effect, established procedures for the use of noxious stimuli to determine if the condemned offender is sufficiently sedated and significantly increased the amount of the sedative drug administered to the condemned. Through all of these modifications, the state used sodium thiopental for the first sedating drug in the protocol. By summer of2010, there was a national shortage of sodium thiopentaL which had been used since the process had first been developed. Oklahoma had three executions scheduled in the second halfof2010 and sodium thiopental was unavailable. Title 22, ~;cction 1014 ofthe OklrJ1oma Statutes required the first drug to be an "ultra fast acting" barbiturate. Clearly, another drug in the same category would have to be substituted for sodium thiopental. The agency discovered there are three barbiturate drugs which might fit the category of "ultra fast acting" barbiturate: sodium thiopental, pentobarbital and methohexitol (also known as Brevitol). In the course of past litigation, the state had consulted with a nationally known expe1i on pentobarbital; however, this expert was unavailable to testif)' until his licensing board determined whether he would be in violation of the board's ethical standards in his consulting cnpacity. Through the efforts of the Attorney General's office, a local pharmacologist was located. The state contracted for the pharmacologist to delennine whether methohexitol could be
sub::!ilttnf;d for sodium thiopental in the execution protocol without any ill effects. The

pharmacologist determined that methohexitol could be substituted for sodium thiopental and could achieve sedative effects at least equal to that of sodium thiopental. Methohexitol was thus substituted for sodium thiopental in the protocol. A lawsuit was filed by a condemned offender and the court delayed the offender's execution to allow the condemned's attorney time to hire an expert with regard to the use of methohexitol. While the litigation was delayed, the state's nationally recognized authority became available for the purposes of testimony. Since this expert had vast experience with the use of pentobarbital and the drug was available, the state decided to use pentobarbital rather than methohexital as the sedative drug. In the meantime, a dose of sodium thiopental was secured from the state of Arkansas. This dose was utilized in the execution of one of the three condemned offenders in the fall of ' 2010. The litigation regarding the use of pentobarbital continued. In December of 2010, a federal judge in the Western District of Oklahoma ruled that the use of pentobarbital did not violate the constitution. The judge's ruling was ultimately upheld by the Tenth Circuit Court of Appeals. The condemned offender appealed to the Supreme Court of the United States. The Supreme Court refused to take the appeal, which paved the way for Oklahoma and other states to use pentobarbital as the sedative drug in the lethal injection protocol. In 2011, the state learned that the manufacturer of pentobarbital objected to the use of the drug in the executions so strenuously that an affidavit swearing it would not be used for executions would be required in order to purchase the drug. Before the affidavit process could be put into place, the state gained access to additional doses of pentobarbital. Currently, there are four (4) doses available for use by the state for executions.

As noted, Oklahoma has been required to litigate every change in the lethal injection protocol, and anticipates future litigation for each new change. In addition, other states have been able to follow Oklahoma's lead after each case is litigated. In 2011, the statute in Oklahoma was changed to allow the use of "any drug or drugs" in the execution process.
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Consequently, the agency will not violate Oklahoma law by using other pharmaceuticals. Undoubtedly, any changes will be met with Federal Court litigation. The agency is closely monitoring litigation in other states to follow their progress with the use of sedative drugs other than pentobarbital. Hopefully, another state will bear the expense of gaining the court's approval of the next drug to be used. If not, the agency can change the protocol to allow methohexitol as the sedative drug even though litigation is a certainty. The agency is currently pursuing legislation which would exclude the use ofthe electric chair as a method of execution. Oklahoma's chair is not operational and not salvageable as an option for execution. The Attorney General is also pursuing a bill which may provide options in the event pharmaceutical options are no longer available. The language of the Attorney General's bill is not available as of this writing.