Warner et al v. Gross et al

Filing 444

ORDER directing the Warden of the Oklahoma State Penitentiary to deliver this order and an extra copy of the attached exhibit to Wade Lay (with further instructions as fully set out in this order). Signed by Honorable Stephen P. Friot on 7/19/2021. (Attachment: # 1 Exhibit A - Alternative methods of carrying out sentence of death)(llg)

Case 5:14-cv-00665-F Document 444 Filed 07/19/21 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD GLOSSIP, et al.,
Plaintiffs,
-vsRANDY CHANDLER, et al.,
Defendants.

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Case No. CIV-14-0665-F

ORDER
The operative statement of the claim of Wade Lay in this action is the Third
Amended Complaint, doc. no. 325, filed on July 7, 2020, which expressly includes
Mr. Lay as a plaintiff. In paragraph 114 of the Third Amended Complaint, Mr. Lay
(along with all of the other plaintiffs) pleads the existence of methods of execution,
as alternatives to execution per Chart D of the February, 2020 execution protocol
(500 milligrams of midazolam, followed by 100 milligrams of vecuronium bromide,
followed by 240 milliequivalents of potassium chloride), as follows:
114. Subject to the foregoing, solely for purposes of this
pleading, based on statutory authority and current and historical
practices, and upon information and belief, counsel alleges on behalf of
Plaintiffs (each of whom reserve the right following consultation with
counsel to object to any proffered alternative), the following alternative
methods of execution are feasible, available, readily implemented and
would significantly reduce a substantial risk of severe pain. Defendants
have refused, without a penological reason, to adopt any of these
alternatives.
a.
Execution by a single dose of FDA-approved
pentobarbital or sodium pentothal (thiopental) as provided by
Charts A and B of the Execution Protocol, each of which is, upon
information and belief, accessible to ODOC, including

Case 5:14-cv-00665-F Document 444 Filed 07/19/21 Page 2 of 4

implementing the remedial measures and safeguards detailed below
and adding a pre-dose of an analgesic, anesthetic drug in a
sufficiently large clinical dose. There are a wide variety of wellknown, accessible, and easily administered pain-relieving
medications used in anesthetic procedures. The opioid fentanyl is
one drug that is accessible to ODOC and that would substantially
reduce the risk that the prisoner would remain sensate to pain. The
necessary remedial measures and safeguards are as follows:
i. the selection of qualified, competent and vetted team
members, whose qualifications are disclosed;
ii. establishment of two patent, functioning peripheral
IV lines and assurance (a) that no central line will be placed
unless it is determined to be necessary following a vein
assessment by a qualified medical professional, and (b) central
lines will be set only by qualified and competent medical
professionals; and
iii. the administration of FDA-approved pentobarbital or
thiopental in close proximity to the prisoner, rather than
remotely. Eliminating the need for extension sets of IV tubing
significantly would reduce the risks of leakage and pinching of
the tubing. Proximate administration would also ensure
adequate surveillance and monitoring of the IV, the catheter site
and the prisoner. By eliminating the need for lengthy IV tubing,
proximate administration would greatly reduce the variation
and risk introduced by the increased contact, and subsequent
resistance, between the drug and the walls of the tubing. Any
concern about revealing the identity of personnel participating
in the execution process could be satisfactorily addressed by
using face and hair coverings or a privacy screen.
b. Execution by a single dose of compounded pentobarbital
or sodium pentothal (thiopental) that complies with all state and
federal compounding requirements, and has been tested for purity
and potency, with records of testing, chain of custody and
compounding formula disclosed to prisoners and their counsel,
including a pre-dose of an analgesic, anesthetic drug in a
sufficiently large clinical dose, and implementing the remedial
measures and safeguards set forth in paragraph 114(a)(i)-(iii)
above.
c. Execution by a single dose of 40 milligrams of FDAapproved midazolam and potassium chloride, including
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implementing the remedial measures and safeguards set forth in
paragraph 114(a)(i)-(iii) above and adding a pre-dose of a painrelieving, anesthetic drug in a sufficiently large clinical dose. If the
prisoner is deemed unconscious and insensate to pain and suffering,
removing the paralytic will allow the prisoner to communicate any
pain and suffering he/she experiences during administration of the
potassium chloride.
d. Execution by firing squad. Execution by firing squad is
currently authorized by Oklahoma and the laws of two other states
(Utah and Mississippi). Defendants have the means and ability to
administer executions by firing squad. Execution by firing squad
eliminates entirely the risk of pain and suffering inherent in
executions using midazolam, a paralytic, and potassium chloride
according to the procedures set forth in the Execution Protocol,
including risks associated with establishing IV access and
addressing a prisoner’s unique physical, health and medical
conditions. Execution by firing squad causes a faster and less
painful death than execution by lethal injection. See Arthur v. Dunn,
137 S. Ct. 725, 733-34 (2017) (Sotomayor, J., dissenting) (citing
reports and stating that a firing squad may cause nearly
instantaneous death, be comparatively painless, and have a lower
chance of a botched execution); see also Bucklew, 139 S. Ct. at 1136
(Kavanaugh, J., concurring) (addressing the availability of firing
squad as an alternative). Execution by firing squad also “is
significantly more reliable” than lethal injection. Glossip v. Gross,
135 S. Ct. 2726, 2796 (2015) (Sotomayor, J., dissenting). Recent
studies have confirmed that execution by firing squad statistically
is much less likely to result in “botched” executions than lethal
injection. See Austin Sarat, Gruesome Spectacles: Botched
Executions and America’s Death Penalty (2014).
It is necessary for the court to ascertain which (if any) of the alternative
methods pled by the plaintiffs are proffered by Mr. Lay as “known and available
alternatives,” Glossip v. Gross, 576 U.S. 863, 878 (2015) to execution per Chart D
of the February, 2020 execution protocol, for purposes of carrying out the sentence
of death previously imposed on Mr. Lay.

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Accordingly:
1. IT IS ORDERED that the Warden of the Oklahoma State Penitentiary, or
his designee, shall deliver this order, and an extra copy of the form attached
hereto as Exhibit A, to Wade Lay, not later than July 23, 2021.
2. IT IS FURTHER ORDERED that the plaintiff, Wade Lay, shall, not later
than July 30, 2021, complete, sign, date and return to the Warden, or his
designee, the form attached hereto as Exhibit A.
3. IT IS FURTHER ORDERED that, not later than August 4, 2021, the
Warden or his designee shall either (i) return the completed form to
defendants’ counsel or (ii) provide to defendants’ counsel an affidavit (or
declaration complying with 28 U.S.C. § 1746) to the effect that the form
was delivered to Mr. Lay (specifying the date of delivery) and that Mr. Lay
failed to complete the form by the date set forth in paragraph 2, above.
4. IT IS FURTHER ORDERED that not later than August 6, 2021,
defendants’ counsel shall file in this case the completed form or the
affidavit, as provided in paragraph 3, above.
5. IT IS FURTHER ORDERED that failure by Wade Lay to timely

complete and sign the form attached as Exhibit A shall be treated by the
court as a refusal to proffer an alternative method of execution.1
IT IS SO ORDERED this 19th day of July, 2021.

14-0665p109 Lay .docx

1

As the Supreme Court noted in Bucklew v. Precythe, 139 S.Ct. 1112, at 1121 (2019), the Court
of Appeals, in that case, had directed that “[a]t the earliest possible time, [the prisoner] must
identify a feasible, readily implemented alternative procedure that will significantly reduce a
substantial risk of severe pain and that the State refuses to adopt.” Bucklew v. Lombardi, 783 F.3d
1120, 1128 (8th Cir. 2015) (underscore added; italics in original).

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