The state says it is looking for any way to proceed with Thursday's execution, even if it requires a last-minute procedure change that could trigger appeals by Clayton Lockett and Charles Warner. Lockett is to die this Thursday and Charles Warner's execution date is March 27.
"At this point, it's premature to discuss the next steps in the process. The attorney general's office is exhausting all available options to ensure the punishment for this heinous crime is carried out," said Aaron Cooper, a spokesman for the attorney general's office.
Lockett and Warner already have a lawsuit pending against the Oklahoma Department of Corrections, saying it is illegal for it to withhold information about the drugs to be used in their executions and unfair that they cannot challenge Oklahoma's execution procedures in court.
The men have asked the Oklahoma Court of Criminal Appeals to grant them a stay of execution, while an Oklahoma County District Court judge has scheduled a Thursday hearing on Lockett and Warner's claim that state secrecy about the drugs threatens a constitutional guarantee against cruel or unusual punishment.
The state is still seeking suitable execution drugs, pending those hearings, Assistant Attorney General Seth Branham said.
"This has been nothing short of a Herculean effort, undertaken with the sole objective of carrying out ODOC's duty under Oklahoma law to conduct Appellants' executions," Branham wrote in a brief filed Monday in the Oklahoma Court of Criminal Appeals. "Sadly, this effort has (so far) been unsuccessful."
The attorney general's office said in the brief that a deal to obtain pentobarbital, a sedative, and vecuronium bromide, a muscle relaxer, from a pharmacy had fallen through. It did not identify the pharmacy.
A third drug used, potassium chloride, stops the heart. The state's brief did not mention that it was in short supply.
"It's stunning news to us that the state does not have the means to carry out a legal execution right now, and it gives us deep cause for concern that they are coupling that revelation with an insistence on shrouding the process in secrecy," said federal public defender Madeline Cohen, who previously defended Lockett and Warner.
Under Oklahoma law, two alternative means of execution are available, but only if lethal injection is deemed unconstitutional: electrocution and firing squad. Since the current delay is based only on a drug shortage, the state cannot switch methods of execution, Corrections Department spokesman Jerry Massie said.
Corrections officials and the attorney general's office will coordinate on finding other suitable drugs for lethal injection. If they succeed, Branham said the state might change its protocols and still attempt to execute Lockett on Thursday at the Oklahoma State Penitentiary in McAlester. Branham and Cohen both acknowledged a change would likely trigger another court battle.
"The state wrote they were planning to use the three-drug cocktail and they mention now they're thinking of using new drugs, but don't list what they are," Cohen said. "I have to believe the Oklahoma courts will be concerned with this situation."
Lockett, 38, and Warner, 46, have argued it is improper for Oklahoma to conduct its executions behind a "veil of secrecy" and have asked for a delay in their executions while they seek to learn more about the drugs that would be used to kill them.
The state argued in its court filing Monday that, in previous decisions, inmates were not allowed to challenge their executions just because something may go wrong.
The "risk of accident cannot and need not be eliminated from the execution process in order to survive constitutional review," Branham wrote.
Lockett was found guilty in the 1999 shooting death of a 19-year-old Perry woman. Warner is set to be executed for the 1997 rape and murder of his girlfriend's 11-month-old daughter.