According to the state, Clayton Lockett and Charles Warner are already supposed to be dead.Their executions were pushed back because a pharmacy that promised drugs for the lethal injection backed out, according to court documents.
Now, after the Attorney General announced a shortage of the usuable drugs earlier this month, new rules are announced by the Dept. of Corrections that allow five drug cocktails to do the job instead.
Critics say some have little, if any, testing.
"It's getting so ludicrous now that I don't know why we just don't inject them with Comet or Windex or just whatever it is to kill people because that's what we're doing now," said Oklahoma City attorney and former death penalty proponent Scott Adams.
Adams says as a young attorney he was a big supporter of the death penalty in system. But he says after years of experience he realized it is incredibly flawed.
"The problem is when you get involved in this system and you see the flaws by prosecutors, by police officers, by defense lawyers you see that it (capital punishment) is not a viable option in a civilized society," he said.
Attorneys for the convicted killers are fighting the latest move in court.
"Until we know what drugs they're going to use and where they're getting these drugs it's impossible to determine whether it's going to be cruel and unusual for the inmates," said defense attorney Seth Day.
Day and his colleagues filed a brief against the new rules that give the prison warden full control over which drugs are used, and the state law that keeps the identities of the pharmacies that supply the drugs confidential.
"This really is about government transparency, not about the death penalty," Day said.
But the state fought back, in a brief authoried by assistant attorneys general John Hadden and Aaron Stewart, citing the need for secrecy to keep the pharmacies and its owner and employees safe. They wrote about one pharmacy who got a bomb threat and one that faced a lawsuit in Tulsa after an inmate found out it would supply his final injection.
The Tulsa-based Apothocary Shoppe decided to stop supplying the products to convince the inmate to drop the suit.
Neither the Dept. of Corrections nor the state Attorney General's office would comment for this story, but the brief lays out their arguments clearly.
In it the state also argues against the cruel and unusual punishment claim from defense attorneys who said the cocktail mixtures could be dangerous, saying "the plaintiffs allege nothing more than anecdotal evidence of inmates who have made comments after the drugs were injected or instances of chocking and thrashing."
It's a back-and-forth only a court can resolve. It's slated for district court Wednesday morning at 9 a.m.
"I wish we would just grow up, become more intelligent and do the right and fair thing and I hope that's what happens," Adams said.
The court will weigh the constitutionality of the current laws that allow the Dept. of Corrections to continue forward with the executions, set for April.
The five injection options, listed in the new DOC procedures are:
1. Sodium Thiopental (2500 mg/100 ml) in each arm, Vecurionium Bromide or equivalent (20mg/20 cc) in each arm, and after unconscious Potassium Chloride (100 meq/50 cc) in each arm
2. Pentobarbital (2500 mg/100 ml) in each arm, Vecuronium Bromide (20 mg/20 cc) in each arm, and after unconscious Potassium Chloride (100 meq/50 cc) in each arm
3. Pentobarbital (2500 mg) in each arm
4. Midazolam (50 mg) or equivalent, Hydromorphone (50 mg), and Potassium Chloride (100 meq/50 cc) if the offender is unconscious. If still conscious, another dose of the Midazolam-Hydromorphone mix will be administered before the Potassium Chloride.
5. Midazolam (50 mg/100 ml) in each arm, Vecuronium Bromide or equivalent (20 mg/20 cc) in each arm, and after unconscious Potassium Chloride (100meq/50 cc) in each arm