Attorneys for Charles Warner and three other death row inmates are asking the US Supreme Court for one more stay of execution.
They claimed the new drug protocols are still experimental.
At the center of their challenge is Oklahoma's use of the drug Midazolam, a drug they claim is used for anxiety and not FDA approved as a general anesthetic. Attorneys said the drug has been used in several highly problematic executions, including the one involving Clayton Lockett last year.
“There has been litigation pending in federal court in Oklahoma for several months,” said Megan McCracken with the Berkley School of Law. “In an execution procedure its use is to anesthetize the prisoner that is the intent of its use and there's a great risk in this context that it will not work as intended in an execution.”
Last month a federal judge ruled against a preliminary injunction, saying the state's newest three drug cocktail is constitutional.
And this week the Tenth Circuit Court of Appeals denied a stay of execution for Charles Warner and the other three death row inmates set to be executed in the next two months.
Warner was convicted of raping and killing his live-in girlfriend's 11-month-old baby back in 1997. Warner was scheduled to be executed the same night as Clayton Lockett. But when Lockett's lethal injection went awry, it was put on hold.
“The sentence that the prisoner has received is a sentence of death, not a sentence of torture,” said McCracken.
Now the state of Oklahoma has overhauled its execution procedures and had the DOC institute new protocols. They include: doing daily training, instituting the use of an ultrasound machine to make sure the drugs hit the veins, and having a backup set of the 3 drug cocktail on hand should it be needed.
But attorneys for the inmates claimed the current drug protocol still present a risk of unconstitutional pain and suffering.
Florida has used the same three drug combination using Midazolam in 11 of their executions without any problems.
So for now, Warner's execution is a go.
The three other death row inmates set to die are Richard Glossip on January 29, John Grant on February 19th, and Benjamin Cole's execution is planned for March 5th.