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.


Nolan Clay, Oklahoma exe­cu­tions could be called off for Julius Jones, oth­ers, The Oklahoman, October 15, 2021; Deon Osborne, FEDERAL APPEALS COURT ALLOWS JULIUS JONES, OTHERS TO REJOIN EXECUTION LAWSUIT, The Black Wall Street Times, October 16, 2021; Danielle Haynes, Appeals court rein­states sev­er­al Oklahoma death row pris­on­ers to law­suit, UPI, October 16, 2021; Dillon Richards, As first exe­cu­tion looms, law­suit filed to expose secrets about the death penal­ty, KOCO News, October 152021.

Read the opin­ion of the U.S. Court of Appeals for the Tenth Circuit’s opin­ion in Wade v. El Habti, revers­ing the Oklahoma fed­er­al dis­trict court deci­sion dis­miss­ing five pris­on­ers from the fed­er­al lethal-injec­tion lawsuit.