Ohio has abandoned a drug that has been linked to several problematic executions, but Oklahoma is planning to inject a death-row prisoner with it next week.
Charles Warner, who was sentenced to die for raping and killing a baby, is fighting to delay his scheduled Jan. 15 lethal injection, arguing that the use of a sedative called midazolam could lead to an excruciating — and unconstitutional — death.
Oklahoma has not executed a prisoner since the botched April 29 execution of Clayton Lockett, who regained consciousness and writhed in pain during a 43-minute procedure that prompted the White House to order a federal review of executions.
Warner was supposed to be executed within hours, but the governor canceled his lethal injection until a review of the Lockett debacle could be carried out.
Authorities later blamed an incorrectly placed IV for Lockett's problems, announced plans for more training and began scheduling new executions.
In a an emergency motion for a stay filed Friday, Warner's lawyers say there's no guarantee that the midazolam will render him fully unconscious before two other drugs, a paralytic and a heart-stopper hit his veins.
Oklahoma and other state have adopted midazolam as part of new protocols to replace less problem-prone drugs, such as pentobarbital, that manufacturers have stopped selling to prisons for executions.
"The State’s rush to find a drug, any drug, to replace the pentobarbital it had been using, inevitably led to choosing a drug whose use will not result in humane executions," Warner's lawyers said in court paper.
Department of Corrections Director Robert Patton told reporters this week that he is confident the execution teams are ready. "The staff at the Oklahoma Department of Corrections has trained very, very hard," he said.
As Oklahoma presses ahead with midazolam, Ohio has done an about-face on it. Controversy over the Jan. 16, 1994, lethal injection of Dennis McGuire — who took 23 minutes to die and appeared to gasp — promoted officials there to return to an old protocol using pentobarbital.
"We remain confident the execution of Dennis McGuire was carried out in a humane and lawful manner," said corrections spokeswoman, JoEllen Smith. "Some did raise questions and in response to those questions we changed the policy."
Ohio if it has found a supplier for pentobarbital, which must be mixed by compounding pharmacies. The state recently enacted a law that would protect the anonymity of such pharmacies.