Oklahoma court stays executions pending challenge to state's secrecy of source of execution drugs

The New York Times reports that the Oklahoma Supreme Court has delayed the executions of two inmates challenging the state's law protecting the identity of its source of lethal injection drugs. The inmates' attorney said they were "relieved" that the court has granted them the opportunity "to fully adjudicate the serious constitutional issues about the extreme secrecy surrounding [the state's] lethal injection procedures," while the state's attorney general called the court's decision "a constitutional crisis for our state."

The Times reports:

The case for a delay had seemed airtight to many legal experts. Last month, a state district court declared that a 2011 supplier-secrecy law, which officials said they needed to coax companies to supply scarce execution drugs, was unconstitutional. In effect, the court agreed that the condemned have a right to know how they will be put to death and to question, at least, whether the untested drug combination the state says it will use, from sources it refuses to reveal, could amount to cruel and unusual punishment.

 

The case is part of a growing legal battlenationally over secrecy in methods of execution, as traditional drugs have become scarce and states have engaged in covert scrambles to find new drug combinations and manufacturers. Oklahoma officials say they must offer secrecy because potential manufacturers fear reprisals for involvement with the death penalty.

 

The decision overturning Oklahoma’s supplier-secrecy law, made March 26 by Judge Patricia Parrish, is now under appeal. But in the meantime, Judge Parrish said, it was up to the state’s Court of Criminal Appeals to issue a stay of execution while the issue plays out.

 

The defendants applied to that court, but it asserted that under its governing statute, it had no jurisdiction because the condemned men had no pending case before their court, such as an appeal of their convictions or sentences.

 

So the lawyers appealed to the Oklahoma Supreme Court. Last Thursday, in the latest of several increasingly pointed go-rounds, the Supreme Court said that the Oklahoma Constitution gave it the authority to decide matters of court jurisdiction and that the Court of Criminal Appeals was misreading its own statute and should handle the request for an emergency stay.

 

On Friday, the criminal court responded with the bureaucratic equivalent of “mind your own business,” saying the Oklahoma Supreme Court does not have the power “to manufacture jurisdiction” in the criminal court “by merely transferring it here.”

Because sources for execution drugs have dried up, states have had to turn to compounding pharmacies subject to less government regulation for substitute drug cocktails. However, due to staunch opposition to the death penalty (and for fear that there will be nowhere else to turn for their fix), states have taken steps to ensure that these sources remain anonymous.

In an editorial earlier this year, The Times called such secrecy "cowardly" and condemned the continued use of the death penalty as "barbaric, racist and arbitrary in its application."

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• NYTimes calls for end to 'barbaric, racist' death penalty
• When victims' families defend defendants against capital punishment
• Correcting a Fatal Lottery: A Proposal to Apply the Civil Discrimination Standards to the Death Penalty
• Ohio delays execution as inmate seeks to donate organs
• Attorney: Ohio execution changes not acceptable