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OKLAHOMA CITY (AP) — A group of Oklahoma death row inmates scheduled to die early next year filed notice Tuesday they intend to appeal the ruling of a federal judge in Oklahoma City who says the state's new lethal injection protocol is constitutional.
The four condemned men who have pending execution dates, beginning with Charles Frederick Warner on Jan. 15, maintain the state's use of the sedative midazolam in a three-drug combination poses a substantial risk of unconstitutional pain and suffering.
But U.S. District Judge Stephen Friot ruled on Monday the 500-milligram dose Oklahoma intends to use makes it a "virtual certainty" that the inmate will be sufficiently unconscious before the second and third drugs are administered to halt the inmate's breathing and stop the heart.
Assistant Federal Public Defender Dale Baich says attorneys are reviewing the judge's order to decide which issues they intend to appeal. Baich declined to discuss legal strategy, but it's likely they will ask the 10th U.S. Circuit Court of Appeals in Denver to delay the upcoming executions.
A spokesman for Attorney General Scott Pruitt, whose attorneys represented the Department of Corrections, said Tuesday they were pleased with Friot's ruling.
"The decision upholds and preserves options for the governor and Department of Corrections to carry out the will of Oklahomans in enforcing the penalty of death for the most heinous of crimes," spokesman Aaron Cooper said.
Oklahoma was the first state to use a 100-milligram dose of midazolam as the first drug of a combination when it executed Clayton Lockett on April 29. Lockett writhed on the gurney, mumbled and lifted his head during his 43-minute execution, which the state tried to halt before it was over.
The inmates also argued that by tinkering with Oklahoma's lethal injection formula, the state is essentially conducting experiments on unwilling human subjects, but Friot in his ruling rejected that claim.
"The Eighth Amendment does not immunize an individual from being the first to be executed using a new procedure," said Friot, who noted states have routinely adopted new methods of execution that were designed to be more humane. "This is not a new method."
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