Court says Oklahoma death penalty is constitutional

OKLAHOMA CITY – The federal Tenth Circuit Court of Appeals today ruled that Oklahoma’s execution protocol does not violate the U.S. Constitution or federal law. The case, brought by numerous Oklahoma death-row inmates, has been ongoing for nearly a decade but now appears to have finally reached its conclusion.

“On behalf of the numerous families whose lives were irrevocably altered by heinous murders of loved ones, I thank the Tenth Circuit for its timely, thorough, and definitive decision,” Attorney General John O’Connor said. “The Tenth Circuit has again affirmed that Oklahoma’s execution protocol is constitutional.”

In today’s ruling, the Tenth Circuit simply held that the death-row inmates do not have a right to have lawyers at their side (with a phone) during the execution itself because they have not shown any actual “injury in fact.” At trial earlier this year, the inmates had claimed an actual injury caused by Oklahoma’s lethal injection protocol, and specifically the use of the drug midazolam. But the district court disagreed, finding that all recent executions in Oklahoma proceeded in a constitutional manner and that Oklahoma’s protocol “worked as intended.” This included the execution of John Grant, the details of which have been widely misreported in the media.

The district court found that the inmates “have fallen well short of clearing the bar set by the Supreme Court” for a successful Eighth Amendment challenge. Based on the testimony of several expert anesthesiologists, the trial court held the “evidence persuade[d] the court, and not by a small margin,” that midazolam “can be relied upon… to render the inmate insensate to pain for the few minutes required to complete the execution.” This ruling was so definitive that the inmates declined to renew their claims against midazolam on appeal to the Tenth Circuit, raising only the access-to-lawyer issue.  

“By not appealing the district court’s judgment on Count II” (which “asserted that Oklahoma lethal injection protocol violates the Eighth Amendment”), the Tenth Circuit held, “plaintiffs have abandoned their claim that the State’s current protocol will likely cause them severe pain and suffering.”

To read the Tenth Circuit’s ruling, click here. To read the Attorney General’s brief on appeal, click here. To read the district court’s opinion after trial, click here.