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October 8, 2015

Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"

The title of this post is the headline of this article (with a little extra commentary) from The Christian Science Monitor. Here are the details:

The wrong lethal injection drug was used in an Oklahoma execution in January, an autopsy report obtained by an Oklahoma newspaper shows. The Oklahoman reported Thursday that potassium acetate, instead of potassium chloride as required under the state's protocol, was the final drug administered to stop Charles Frederick Warner's heart during his Jan. 15 execution.

Mr. Warner, convicted of the rape and murder of an 11-month-old in 1997, is the last murderer to be executed at the Oklahoma State Penitentiary in McAlester. His punishment was carried out almost nine months after the execution of murderer Clayton Lockett, whose botched execution triggered an investigation into the combination of drugs used that went all the way up to the Supreme Court on the grounds of Eighth Amendment rights infringement -- that is, whether or not Oklahoma failed to protect Mr. Lockett from “cruel and unusual” punishment....

The same incorrect drug found in Warner’s autopsy report were delivered to corrections officials Sept. 30 for the scheduled execution of another convicted murderer, Richard Glossip.  After learning of the mistake, Oklahoma Gov. Mary Fallin granted a last-minute stay and postponed off the executions of two additional death row inmates.

An investigation into the circumstances surrounding Warner's execution was announced by Attorney General Scott Pruitt shortly after.  On Wednesday, Mr. Pruitt said the investigation will cover any previous drug mistake, The Oklahoman reports.

“I want to assure the public that our investigation will be full, fair, and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said.

Governor Fallin said Wednesday night she supports further inquiry into Warner's execution, and told the newspaper it “became apparent” on Sept. 30 when Glossip’s execution was delayed that a similar mix-up may have occurred in Warner’s case....

“It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly,” Fallin said in an email to The Oklahoman. “Until we have complete confidence in the system, we will delay any further executions.”

She said she and the attorney general delayed Glossip's execution as a precaution, despite the doctor and the pharmacist working with corrections officials agreeing that potassium chloride and potassium acetate are medically interchangeable. “The active ingredient is potassium, which, when injected in large quantities, stops the heart,” the governor said.

She said “it became apparent” during the discussions Sept. 30 about a delay that the Corrections Department may have used potassium acetate in Warner's execution. “I was not aware nor was anyone in my office aware of that possibility until the day of Richard Glossip's scheduled execution,” she said. On Tuesday, Fallin said she has hired an outside attorney “to look at the whole process” and provide oversight.

October 8, 2015 at 08:26 PM | Permalink


Harmless error, as the appellate court would say about lawyer mistakes.

Posted by: Supremacy Claus | Oct 8, 2015 9:45:28 PM

If you are gonna violate the Sixth Commandment then at least kill them with some dignity and shoot them. Why do you call it "lethal execution". It is killing. Y'all Can is some sort of exception in that state to the Sixth Commandment.

Posted by: Liberty1st | Oct 8, 2015 11:42:12 PM

It was hardly harmless for the State to kill a person.

Posted by: Jack Mehoff | Oct 9, 2015 8:45:14 AM

when I talk to various groups like Rotary, Kiwanis, school classes, church groups, etc. about capital punishment usually at some point during the talk I ask to see a show of hands of everyone who has never made a mistake. enough said.

Posted by: bruce cunningham | Oct 9, 2015 9:25:19 AM

Bruce, so shut down transportation, including walking, since 1000 pedestrians are mistakenly killed a year.

Mistakes should prompt airline crash style investigations, not the stopping of the activity.

The exoneration rate is an argument that the lawyer profession is really stupid, as a class. Whatever your native intelligence, it went below the mentally retarded range after passing 1L. Mentally retarded children have more common sense than you do.

Unless you meant that the rape and murder of a little girl is "a mistake" like anyone of us could make, and it should be forgiven. If that is what you mean, there is no talking to you. You need to be beaten with a stick, because you are beyond the pale of humanity.

Posted by: Supremacy Claus | Oct 9, 2015 9:31:09 AM

Um, who really cares? The potassium ion is what kills. So it doesn't matter whether it's attached to a chloride ion or an acetate ion (an acetate ion is a component of Acetyl CoA. This is legalistic fetishism at its absolute worst. And Jack, the issue isn't whether it was harmful to kill a person--of course it was--the issue is whether the KAc made a difference vis a vis KCl. The answer to that is no. Warner was a vicious criminal--he got what he deserved.

Bruce, your argument is sophistry--given the layers of review (and not just court reviews) etc with any capital case, a personal mistake isn't analogous.

Posted by: federalist | Oct 9, 2015 9:37:53 AM

"potassium acetate, instead of potassium chloride as required under the state's protocol"

But, requirements as set forth by established state procedure are more recommendations, per Pirates of the Caribbean, when the change "doesn't matter." It is "legalistic fetishism at its absolute worst" to actually use the right drug as required. If potassium is the only thing that matters, why isn't that what is "required under the state's protocol" with the specific kind a matter of whatever is available?

I checked and potassium acetate and potassium chloride are deemed not merely interchangeable by experts.



'While from the same chemical family, potassium acetate is less concentrated than its chloride counterpart, and the acetate acts as a buffer; pharmacologist David Kroll wrote in Forbes that it would take 20% more potassium acetate to induce cardiac arrest.'

So, it "does matter" even if the criminal "got what he deserved" in some fashion. If even procedural due process -- using the drugs as authorized by law and done so for a reason -- is merely advisory, seems a bit off to me. YMMV.

Posted by: Joe | Oct 9, 2015 10:22:33 AM

Um, Joe, the amount of K+ is more than enough to induce heart stoppage whether it's KCl or KAc. So, no, it didn't matter. And it's interesting to see compare your fly-specking here with your silence on this whole "it's burning" nonsense. As you know, the complained about being burned at the stake is due to the KCl, not the pentobarbital. So why aren't you complaining about the references to that in the news coverage or the last-minute briefs in support? The reason is that you are a hack and an ideologue. You're not interested in erudition; you're not even interested in the law--all you're interested in is cheerleading for a bunch of liberals who think they have the right to thwart society's right to kill certain murderers. I guess that's all you have when you're an intellectual pygmy who likes to preen. Contrast that with me--I fight you guys on what you think is your turf. Oklahoma obviously didn't follow it's protocol, and, of course, you and your ilk have the vapors about it. And I am calling you on it. You don't dare defend a 'rat stay or an attempted 'rat stay ever.

LI protocols have gotten far more detailed than they need to be due to the incessant federal (and some state) court meddling. It leads to ridiculous things like Judge Frost arguing an EPC violation because Ohio added a non-protocoled doc to the execution team. This sort of silliness is the root of the problem. If Oklahoma had a protocol that said "or such other potassium compound and in such a dose that will make it the equivalent of KCl" you'd be whining about that. Never mind that the two other drugs (a) were in lethal doses and (b) the condemned would be insensate.

Posted by: federalist | Oct 9, 2015 10:44:52 AM

Federalist writes of Joe: "The reason is that you are a hack and an ideologue. ....I guess that's all you have when you're an intellectual pygmy who likes to preen."

It has been repeatedly observed that those who launch ad hominem attacks on their opponents bring dishonor only upon themselves.

Posted by: observer | Oct 9, 2015 10:50:46 AM

Cutting through the verbiage, criticism of me and so forth.

The drugs are not merely interchangeable. As experts cited note, they work at least somewhat differently, and this would require a somewhat different usage. A protocol is set up tied to one drug; that is the procedure in place, the "due process of law." A different drug would require a somewhat different procedure. It "matters."

I'm not saying here the execution cannot be done. But, the drugs are not interchangeable and it is not mere legal fetishism to care about it.

Posted by: Joe | Oct 9, 2015 11:42:25 AM

"due process of law"--huh? Where's the due process right at issue here? We're talking about an insensate prisoner who is being killed by potassium ions delivered in a dosage that will kill him. In the real world, this is called a nothing-burger. But Joe cares. But explain how the KAc vs. KCl made any difference at all to the dead guy? You incant "due process of law"--but that's just sloganeering. This is the equivalent of whining that a firing squad protocol called for 3 live shooters and 3 blank shooters if a prison official used 5 live shooters and one blank shooter. (Actually less, because the condemned would have been sensate, and all things being equal, I'd rather get shot 3 times and die than 5 times and die.) He didn't suffer any more pain, and he died via the same cause (cardiac arrest).

This is an obsession with the trivial, and it's the same sort of faux legalistic type thinking that leads to ridiculously enforced school policies and other remorseless regulatory actions.

Posted by: federalist | Oct 9, 2015 11:59:20 AM

Federalist, would injecting the condemned prisoner with rat poison present any problem?

Posted by: dave from texas | Oct 9, 2015 3:05:30 PM

If he were insensate, probably not. There may be some dignity issues that arise--but that's not what happened here. I suspect you all know it, but your craven desires to free prisoners from richly deserved sentences forces you to make these silly observations.

Under traditionally understood due process principles, there is nothing here, and it's disheartening to see a resolute governor not forcefully challenging the silly firestorm that has resulted. But if we took this fetishism for faux legality into areas that Joe and his ilk don't like, you'd see a lot of "due process" issues for things like EPA enforcement or the prosecution of "crimes" like shooting a grizzly bear to protect one's own children.

Posted by: federalist | Oct 9, 2015 3:45:48 PM

Any difference between the substances was dwarfed and made meaningless by the overwhelming overdose of the potassium atom itself. Any lawyer bringing up any difference has a frivolous claim. All costs should be paid from the personal assets of the defense lawyer.

I know this endorsement is probably a negative for him.

Federalist is a licensed lawyer.

He is defending the substantive rights of crime victims. He is the only licensed lawyer doing so.

Posted by: Supremacy Claus | Oct 9, 2015 6:17:33 PM

Potassium acetate is medically indicated for addition to bags of intravenous solutions, as an alternative to potassium chloride. Because of its more intense and rapid effect, it is not to be directly shot into the patient with low potassium.

In the context of an execution, it is therefore faster and more effective than potassium chloride, so more rapid and humane in the execution.

Posted by: Supremacy Claus | Oct 9, 2015 6:26:02 PM

Unlike Joe, my references are medical, and not ridiculous, and vile left wing hate speech sites.

Posted by: Supremacy Claus | Oct 9, 2015 6:34:21 PM

Dave. Rat poison is usually warfarin, a blood thinner, that causes internal bleeding. Murderers, rats, what is the difference in your book?

Posted by: Supremacy Claus | Oct 10, 2015 12:50:43 AM

A murderer trying to carry a slice of pizza into a subway station would make a much less cute and meaningful YouTube video.

Posted by: Joe | Oct 11, 2015 1:20:11 PM

A murderer trying to carry a slice of pizza into a subway station would make a much less cute and meaningful YouTube video.

Posted by: Joe | Oct 11, 2015 1:20:15 PM

Joe. Touche. Laugh of the Day.

Posted by: Supremacy Claus | Oct 11, 2015 2:26:40 PM

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