Oklahoma Court of Criminal Appeals Sets Seven Execution Dates

After more than six years with no exe­cu­tions and with a tri­al pend­ing on the con­sti­tu­tion­al­i­ty of the state’s lethal injec­tion process, the Oklahoma Court of Criminal Appeals has issued death war­rants set­ting sev­en exe­cu­tion dates in a less than five-month peri­od between late October 2021 and mid-March 2022.

The death war­rants were issued September 20, 2021, 25 days after Oklahoma Attorney General John O’Connor filed and then revised a motion request­ing the exe­cu­tion dates and 40 days after the U.S. District Court for the Western District of Oklahoma ordered a tri­al on alle­ga­tions by state death-row pris­on­ers that Oklahoma’s three-drug lethal-injec­tion process is uncon­sti­tu­tion­al­ly tor­tur­ous. One of the war­rants autho­rizes Oklahoma to exe­cute Julius Jones, despite a September 13 rec­om­men­da­tion by the Oklahoma Pardon and Parole Board, cit­ing doubts as to Jones’ guilt, that Governor Kevin Stitt should com­mute his sen­tence to a life term with the pos­si­bil­i­ty for parole. 

The death war­rants set three exe­cu­tion dates over a six-week span in late 2021 with anoth­er four exe­cu­tions over the course of nine weeks in ear­ly 2022. The sched­uled exe­cu­tion dates are: John Grant (October 28), Jones (November 18), Bigler Stouffer (December 9), Wade Lay (January 6, 2022), Donald Grant (January 27), Gilbert Postelle (February 17), and James Coddington (March 10).

“We are con­cerned that the court set these dates when it knows that unre­solved ques­tions about Oklahoma’s lethal injec­tion pro­to­col remain pend­ing in the fed­er­al dis­trict court,” said Assistant Federal Public Defender Dale Baich, who rep­re­sents the pris­on­ers chal­leng­ing the state’s lethal-injec­tion pro­to­col. ​“To allow exe­cu­tions to pro­ceed when there is a chance the fed­er­al court could find a con­sti­tu­tion­al­ly unac­cept­able risk that a per­son could suf­fer because of the drug com­bi­na­tion used, is deeply troubling.”

‘Far from the Worst of the Worst’

The sev­en cas­es are rep­re­sen­ta­tive of prob­lems endem­ic to the U.S. death penal­ty. Jones’ case involves sig­nif­i­cant ques­tions of inno­cence, racism, and pros­e­cu­to­r­i­al mis­con­duct. The oth­er cas­es involve pris­on­ers with doc­u­ment­ed evi­dence of seri­ous men­tal ill­ness, brain dam­age, and/​or chron­ic, severe child­hood trau­ma, as well as defi­cient rep­re­sen­ta­tion. These issues mir­ror nation­al exe­cu­tion trends: all but one of the pris­on­ers exe­cut­ed in the United States in 2020 had a seri­ous men­tal ill­ness; brain injury, devel­op­men­tal brain dam­age, or an IQ in the intel­lec­tu­al­ly dis­abled range; and/​or chron­ic seri­ous child­hood trau­ma, neglect, and/​or abuse.

Counsel for the pris­on­ers issued state­ments in response to the war­rants illus­trat­ing sig­nif­i­cant issues in the cases. 

Baich said James Coddington has a life­long his­to­ry of severe men­tal ill­ness, caused or exac­er­bat­ed by child­hood mal­nu­tri­tion and chron­ic trau­ma, sub­stance abuse, and a fam­i­ly his­to­ry of men­tal ill­ness. His severe men­tal ill­ness was already present at age eight, when he was hos­pi­tal­ized in a men­tal insti­tu­tion for six months, the statement said.

Donald Grant suf­fers from severe men­tal ill­ness aris­ing from fetal alco­hol expo­sure, oxy­gen depri­va­tion from com­pli­ca­tions dur­ing his birth, and trau­mat­ic brain injury from child­hood phys­i­cal abuse. He was insti­tu­tion­al­ized in a state hos­pi­tal for men­tal health treat­ment for five years before being deemed com­pe­tent to stand trial. 

Wade Lay suf­fers from delu­sions as a result of schiz­o­phre­nia. He was per­mit­ted to rep­re­sent him­self at tri­al and was offered a plea deal for a life sen­tence, which he turned down. 

John Grant, the first man sched­uled for exe­cu­tion, was raised in abject pover­ty, his lawyer, Sarah Jernigan, said in a state­ment. He was insti­tu­tion­al­ized in a noto­ri­ous state juve­nile facil­i­ty at age 12 for crimes that includ­ed steal­ing clothes and shoes for his younger broth­ers and sis­ters so they would have some­thing to wear. His tri­al lawyers — includ­ing one who lat­er was dis­barred for mis­con­duct that was on-going at the time Grant’s case — failed to present the doc­u­ment­ed evi­dence of his chron­ic child­hood and insti­tu­tion­al abuse to the jury. 

“John Grant is far from the worst of the worst,” she said. ​“He has tak­en full respon­si­bil­i­ty for his crime and has apol­o­gized to his victim’s fam­i­ly. Had the jury learned of the hor­rif­ic vic­tim­iza­tion he expe­ri­enced in State-run insti­tu­tions when he was just a child, there is at least a rea­son­able prob­a­bil­i­ty he would not have been sen­tenced to death. Rather than killing him now, the State should extend him the mer­cy he was denied as a vul­ner­a­ble child in its custody.”

Oklahoma’s Troubled Execution History

If the exe­cu­tions pro­ceed, they will be the first in Oklahoma since January 2015. In 2014, the state grue­some­ly botched the exe­cu­tion of Clayton Lockett. After the exe­cu­tion team failed 16 times to set an IV line, one of Lockett’s veins explod­ed. He died 45 min­utes into the pro­ce­dure of what was described at the time as a mas­sive heart attack. 

In January 2015, Oklahoma exe­cut­ed Charles Warner using a chem­i­cal that was not autho­rized by the state’s exe­cu­tion pro­to­col. The state once again obtained the same incor­rect drug for the sched­uled exe­cu­tion of Richard Glossip in September 2015. However, the error was dis­cov­ered short­ly before the exe­cu­tion, and the exe­cu­tion was stayed at the last minute. The botch­es led to a grand jury inves­ti­ga­tion, and the state agreed to put exe­cu­tions on hold while it attempt­ed to devel­op a new execution protocol. 

The state leg­is­la­ture then autho­rized exe­cu­tions by nitro­gen hypox­ia, but the Department of Corrections was nev­er able to obtain a sup­ply of the gas or devel­op a work­able exe­cu­tion pro­to­col. Despite the prob­lems that arose in the pri­or exe­cu­tions, the state ulti­mate­ly announced that it intend­ed to use the same set of chem­i­cals that were in its pro­to­col at the time of the botch­es. That pro­to­col is the sub­ject of continuing litigation.

When O’Connor first announced that he was seek­ing the exe­cu­tion dates, he assert­ed that the sev­en pris­on­ers could be exe­cut­ed because six had been dis­missed from the law­suit for not iden­ti­fy­ing an alter­na­tive method by which they could be exe­cut­ed and the sev­enth is not a par­ty to the law­suit. At that time, Baich said, ​“The drug pro­to­col that was prob­lem­at­ic sev­en years ago is the same one the state seeks to use again. Given that his­to­ry and the unre­solved ques­tions about the con­sti­tu­tion­al­i­ty of the State’s exe­cu­tion pro­to­col that are pend­ing before the fed­er­al dis­trict court, Oklahoma should not move for­ward with any exe­cu­tions at this time.”

The exe­cu­tion sched­ule will force Oklahoma’s par­dons board to con­duct a series of clemen­cy hear­ings in a com­pressed time peri­od. In a foot­note in its order, the court said it was ​“aware of Jones’s com­mu­ta­tion rec­om­men­da­tion cur­rent­ly pend­ing before the Governor. Because there is cur­rent­ly no legal stay in effect,” it wrote, ​“this Court’s duty to set a date cer­tain is dic­tat­ed by [state law].” Governor Stitt has not yet announced whether he will grant clemency.

“The court’s set­ting of an exe­cu­tion date under­scores the stakes and the urgency involved with Julius Jones’ com­mu­ta­tion appli­ca­tion,” said Rev. Cece-Jones-Davis, a leader of the ​“Justice for Julius” move­ment. ​“After a thor­ough review and a mul­ti­ple hour hear­ing, the Oklahoma Pardon and Parole Board vot­ed 3 to 1 to com­mute Julius’s sen­tence to life. We urge Governor Stitt to review the appli­ca­tion in a time­ly man­ner and bring long-avert­ed jus­tice to this very trag­ic sit­u­a­tion by accept­ing the rec­om­men­da­tion of the Oklahoma Pardon and Parole Board.”