Glossip v. Chandler

• Docket Number: CIV-14-0665-F
• Decision Date: 06 June 2022
• Parties: RICHARD GLOSSIP, et al., Plaintiffs, v. RANDY CHANDLER, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

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RICHARD GLOSSIP, et al., Plaintiffs, v. RANDY CHANDLER, et al., Defendants.

No. CIV-14-0665-F

United States District Court, W.D. Oklahoma

June 6, 2022

FINDINGS OF FACT AND CONCLUSIONS OF LAW

STEPHEN P. FRIOT UNITED STATES DISTRICT JUDGE

Table of Contents

I. Introduction..................................... 1

II. Findings of Fact..................................... 1

A. Procedural history..................................... 1

B. The 2020 Protocol ..................................... 3

C. The effect of vecuronium bromide as used in the protocol..................................... 4

D. The effect of potassium chloride as used in the protocol..................................... 5

E. The pharmacology and clinical uses of midazolam ..................................... 5

F. The four recent Oklahoma executions..................................... 7

1. The John Grant execution ..................................... 9

2. The Bigler Stouffer execution ..................................... 14

3. The Donald Grant execution..................................... 17

4. The Gilbert Postelle execution..................................... 18

G. Glossip first prong: The challenge to midazolam as used per Chart D..................................... 19

1. Dosage, speed of administration and duration ..................................... 19

2. What is “induction”? What is “general anesthesia”? ..................................... 20

3. Ceiling effect..................................... 24

4. Pulmonary edema ..................................... 26

5. The reliability of midazolam as used per Chart D..................................... 30

H. The adequacy of the consciousness check ..................................... 35

I. The plaintiffs' proposed alternative methods of execution..................................... 37

1. Fentanyl plus compounded or commercially procured pentobarbital or sodium thiopental ..................................... 37

2. Firing squad ..................................... 38

III. Conclusions of Law..................................... 40

IV. Conclusion ..................................... 42

I. Introduction

The plaintiffs, Oklahoma inmates awaiting execution, challenge the constitutionality, under the Eighth Amendment, of Oklahoma's protocol for execution by lethal injection. Defendants are various Oklahoma officials charged with responsibility for implementation of that protocol. After three trips to the Supreme Court, much motion work, and a nonjury trial, the matter is now ready for entry of final judgment. The court's findings of fact and conclusions of law, entered pursuant to Rule 52(a), Fed.R.Civ.P., are set forth below. The final judgment will also be entered today.

II. Findings of Fact

A. Procedural history

This action was filed in 2014, as a challenge to Oklahoma's then-existing protocol for execution by lethal injection. A preliminary injunction hearing was held in December, 2014, resulting in denial of a preliminary injunction to block the executions of Charles Warner and three other inmates. Denial of the preliminary injunction was affirmed by the Court of Appeals. Warner v. Gross, 776 F.3d 721 (10^th Cir. 2015). The Supreme Court affirmed that judgment. Glossip v. Gross, 576 U.S. 863 (2015). In the meantime, Charles Warner, having been denied emergency relief, was executed by lethal injection in January, 2015.^[1]

A series of mishaps, some more serious than others, with respect to Oklahoma's implementation of its lethal injection protocol resulted in a state grand jury investigation and a protracted period of development of a new protocol. A new protocol was promulgated in February, 2020. That precipitated the filing of the third amended complaint, doc. no. 325, which remains the operative complaint in this case.

The nature and status of the claims asserted in the third amended complaint is shown in this table:

Count I

Fifth^[2] Amendment Due Process claim based on asserted failure to disclose sufficient information re: development of the protocol and execution procedures. Dismissed per order at doc. no. 349.

Count II

Eighth Amendment claim asserting that constitutionally impermissible pain and suffering will result from the use of the three-drug lethal injection protocol (midazolam, vecuronium bromide and potassium chloride). Defendants' motion for summary judgment denied; Count II was tried to the court in February and March, 2022.

Count III

Eighth and Fifth^[3] Amendment claim asserting “deliberate indifference” to the serious medical needs of the plaintiffs. Dismissed per order at doc. no. 349.

Count IV

First, Fifth^[4] and Sixth Amendment claim asserting unconstitutional denial of access to counsel and the courts. Summary judgment granted on motion of the defendants per order at doc. no. 449.

Count V

18 U.S.C. § 3599 claim asserting intentional deprivation of right to counsel. Summary judgment granted on motion of the defendants per order at doc. no. 449.

Count VI

Ex Post Facto claim under U.S. and Oklahoma Constitutions, based on substitution of midazolam. Summary judgment granted on motion of the defendants per order at doc. no. 449.

Count VII

Fourteenth Amendment Due Process claim based on use of midazolam instead of barbiturate. Summary judgment granted on motion of the defendants per order at doc. no. 449.

Count VIII

Religious freedom claim asserting violation of plaintiffs' sincerely-held religious beliefs resulting from necessity of proposing a feasible alternative method of execution. Dismissed per order at doc. no. 349.

Count IX

Eighth and Fourteenth Amendment claim asserting that plaintiffs will be subjected to constitutionally impermissible human experimentation. Summary judgment granted on motion of the defendants per order at doc. no. 449.

Count X

First and Fourteenth Amendment claim asserting denial of right of access to governmental information. Summary judgment granted on motion of the defendants per order at doc. no. 449.

As can be seen, the only claim remaining for trial was the Count II claim, asserting that execution by lethal injection, using the three-drug protocol specified in Chart D of the 2020 protocol, violated the Eighth Amendment's prohibition of cruel and unusual punishment. See, doc. no. 629 (Final Pretrial Report), at 4, ¶ 5. That claim was tried in a nonjury trial which began on February 28, 2022 and was completed on March 7, 2022. Twenty-eight plaintiffs, all awaiting execution, remained in the case at the time of trial.^[5]

The trial transcript has been filed and the parties have submitted their post-trial filings.^[6] Doc. nos. 643 and 644. The matter is ripe for decision.

B. The 2020 Protocol

The 2020 protocol, entitled Execution of Inmates Sentenced to Death, was adopted with an effective date of February 20, 2020.^[7] PX 45.^[8] The protocol includes detailed provisions with respect to (i) the staffing required to conduct an execution, (ii) qualifications of the Intravenous Team (“IV Team”), (iii) training of team members, (iv) designation and escort of execution witnesses, (v) procedures to be followed in the days and weeks preceding an execution, (vi) news media access, (vii) IV insertion, (viii) procedure in the execution chamber, (ix) post execution procedures, (x) after action reviews, and (xi) the preparation and administration of the lethal injection drugs.

The lethal injection drug combination relevant here is that set forth in Chart D, PX 45, Attachment D, p. 3. Chart D calls for the administration of the following substances in the order shown:

1. 500 milligrams midazolam (via two syringes)

2. 60 ml. heparin/saline

3. 100 milligrams vecuronium bromide^[9] (via two syringes)

4. 60 ml. heparin/saline

5. 240 milliequivalents potassium chloride (via two syringes)

6. 60 ml. heparin/saline

C. The effect of vecuronium bromide as used in the protocol

Vecuronium bromide is a drug used, clinically, as a muscle relaxant. A typical clinical dose is 20 to 30 milligrams. When administered in the dosage called for in Chart D (more than ten times the dosage specified on the FDA-approved label), vecuronium bromide functions as a paralytic, rendering the inmate unable to move (and thus unable to give any indication of pain or other distress). As a paralytic, vecuronium bromide will stop breathing (by stopping the diaphragm), but it will not stop the heart. An inmate who is alive, sensate and paralyzed by vecuronium bromide would have a sense of suffocation. (This is the “substantial, constitutionally unacceptable risk of suffocation” noted by the Supreme Court in Baze v. Rees, 553 U.S. 35, 53 (2008).)

D. The effect of potassium chloride as used in the protocol

Potassium chloride is a salt which is used clinically to replace potassium if the patient's potassium level is too low. It can also be used in heart surgery to make the patient's heart stop for purposes of the surgery. Potassium chloride is used in the Oklahoma protocol (at a dosage several times higher, and more concentrated, than any clinical dose) to induce cardiac arrest-fatal heart stoppage if the inmate is still alive when the potassium chloride is pushed. Administration of 240 milliequivalents of potassium chloride to a sensate inmate will cause pain and suffering.

The administration of potassium chloride, causing the heart to stop, renders vecuronium bromide essentially superfluous to the accomplishment of the purpose of the execution. As Dr. Mark Edgar explained, the paralytic effect of vecuronium bromide stops breathing, which is unnecessary if the inmate's heart is going to be stopped with potassium chloride. Tr. 208.

E. The pharmacology and clinical uses of midazolam

Gamma aminobutyric acid-GABA-is a...