Federal Appeals Court Reinstates Oklahoma Death-Row Prisoners to Lawsuit in Decision That May Require State to Vacate Execution Dates

In a deci­sion with poten­tial to vacate a num­ber of Oklahoma exe­cu­tion dates, the U.S. Court of Appeals for the Tenth Circuit has held that a low­er fed­er­al court abused its dis­cre­tion in dis­miss­ing six death-row pris­on­ers from a law­suit chal­leng­ing the state’s execution protocol. 

The appeals court deci­sion, issued on October 15, 2021, said that a rul­ing by Judge Stephen Friot of the U.S. District Court for the Western District of Oklahoma that six death-row pris­on­ers who had not des­ig­nat­ed an alter­na­tive method for Oklahoma to exe­cute them could no longer be par­ties to the prisoner’s exe­cu­tion chal­lenge was not a final judg­ment against them. As a result, they will remain par­ties to the law­suit until the dis­trict court con­ducts a tri­al, sched­uled for ear­ly 2022, and resolves whether Oklahoma’s three-drug exe­cu­tion process is unconstitutionally torturous. 

The pris­on­ers have argued that the U.S. Supreme Court requires them to allege that the state has an alter­na­tive method to exe­cute them, which the law­suit does, not to des­ig­nate a par­tic­u­lar method for their own exe­cu­tion. ​“Although a dis­trict court’s deci­sion to [cer­ti­fy a judg­ment as final] mer­its sub­stan­tial def­er­ence,” the appeals court wrote, ​“we con­clude the dis­trict court abused its dis­cre­tion in cer­ti­fy­ing its judge­ment as final.”

State offi­cials had told the court that no exe­cu­tions would be sched­uled while the pris­on­ers’ exe­cu­tion chal­lenge was still pend­ing. Following Friot’s rul­ing, how­ev­er, state pros­e­cu­tors sought and were grant­ed exe­cu­tion dates for five of the men Friot dis­missed from the case. 

The state had set exe­cu­tion dates for John Grant (Oct. 28), Julius Jones (Nov. 18), Donald Grant (Jan. 27, 2022), Gilbert Postelle (Feb. 17), and James Coddington (Mar. 10) after Judge Friot removed them from the lit­i­ga­tion in August. Dale Baich, one of the attor­neys rep­re­sent­ing the death-row pris­on­ers in the exe­cu­tion pro­to­col law­suit, said their exe­cu­tion dates should be vacat­ed: ​“The Attorney General made a com­mit­ment to the court and the par­ties that the state would not car­ry out exe­cu­tions while this case was pend­ing in the dis­trict court. Now that the plain­tiffs are back in the law­suit, we expect the Attorney General to keep his promise and ask the Oklahoma Court of Criminal Appeals to vacate the sched­uled execution dates.” 

At a March 2020 hear­ing in the case, Judge Friot made it clear that he would inter­vene in any sched­uled exe­cu­tion of a pris­on­er who was par­ty to the law­suit. ​“I had the rep­re­sen­ta­tion last March from none oth­er than the Attorney General of Oklahoma that [the state would not set exe­cu­tion dates]. And if we should have indi­ca­tion that that will hap­pen,” Judge Friot said, ​“I will be, to put it mild­ly, immediately available.”

The pris­on­ers’ law­suit con­cerns the state’s plan to car­ry out exe­cu­tions using a three-drug com­bi­na­tion of the seda­tive mida­zo­lam, the par­a­lyt­ic drug vecuro­ni­um bro­mide, and the heart-stop­ping chem­i­cal, potas­si­um chlo­ride. The pris­on­ers argue that the drug pro­to­col vio­lates the Eighth Amendment ban on cru­el and unusu­al pun­ish­ment. Their law­suit alleges, based on exe­cu­tion-autop­sy results, that the use of mida­zo­lam caus­es a sense of suf­fo­ca­tion from ​“flash pul­monary ede­ma” — an almost imme­di­ate build-up of flu­id in the lungs — while the pris­on­er is con­scious, fol­lowed by ​“chem­i­cal suf­fo­ca­tion” as the par­a­lyt­ic drug shuts down the lungs, and the pain of being chem­i­cal­ly ​“burned alive” by the potas­si­um chlo­ride. Judge Friot has sched­uled a tri­al to begin on February 28, 2022.

A sep­a­rate law­suit was filed in October seek­ing to obtain infor­ma­tion about the state’s lethal-injec­tion drugs. Retired attor­ney Fred Hodara sued the Oklahoma Department of Corrections after prison offi­cials denied his pub­lic records requests for infor­ma­tion on the source of the drugs, their price, and the quan­ti­ty the state has obtained.