Oklahoma Attorney General Requests Seven Execution Dates Despite Pending Trial on Constitutionality of Lethal-Injection Protocol

Despite the pen­den­cy of a tri­al on the con­sti­tu­tion­al­i­ty of the state’s lethal-injec­tion pro­to­col, new­ly appoint­ed Oklahoma Attorney General John O’Connor has asked the Oklahoma Court of Criminal Appeals to set exe­cu­tion dates for sev­en pris­on­ers on the state’s death row. If the court approves the exe­cu­tion dates, they would be Oklahoma’s first attempt to car­ry out exe­cu­tions in more than six years, end­ing a hia­tus brought on by a series of botched executions.

On August 26, 2021, O’Connor filed a motion in the crim­i­nal appeals court seek­ing to exe­cute sev­en men in a four-month peri­od between October 7, 2021 and February 10, 2022. The motion came just two weeks after a fed­er­al dis­trict court ruled on August 11 that death-row pris­on­ers had pre­sent­ed suf­fi­cient evi­dence to war­rant a tri­al on their claim that Oklahoma’s exe­cu­tion pro­to­col was uncon­sti­tu­tion­al­ly tor­tur­ous. O’Connor 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.

The sev­en men for whom the state is seek­ing exe­cu­tion dates are John Marion Grant (Oct. 7), Julius Jones (Oct. 28), Bigler Jobe Stouffer (Nov. 18), Wade Greely Lay (Dec. 9), Donald A. Grant (Dec. 30), Gilbert Ray Postelle (Jan. 20, 2022), and James Allen Coddington (Feb. 10).

“Oklahoma has a check­ered his­to­ry when it comes to car­ry­ing out exe­cu­tions,” said Assistant Federal Public Defender Dale Baich, who is rep­re­sent­ing death-row pris­on­ers in the pro­to­col law­suit. ​“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. To allow exe­cu­tions to pro­ceed when there is a chance the court could find a con­sti­tu­tion­al­ly unac­cept­able risk that a per­son could suf­fer because of the drug com­bi­na­tion used, is just plain wrong.”

The fed­er­al-court rul­ing ordered a tri­al on the pris­on­ers’ lethal-injec­tion claims but dis­missed sep­a­rate claims that the state’s exe­cu­tion process con­sti­tut­ed human exper­i­men­ta­tion in vio­la­tion of fed­er­al law and U.S. inter­na­tion­al oblig­a­tions. The court also dis­missed six pris­on­ers from the suit who pled that Oklahoma had alter­na­tive meth­ods avail­able to exe­cute them but did not des­ig­nate an alter­na­tive method for their own exe­cu­tions. On August 30, the pris­on­ers filed a motion ask­ing the court to recon­sid­er those rulings.

The tri­al on the lethal-injec­tion claim will take place ear­ly in 2022. Oklahoma has indi­cat­ed that it intends 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’ law­suit seeks to ensure that if they are to be exe­cut­ed, Oklahoma does so in a man­ner that does not unnec­es­sar­i­ly sub­ject them to excru­ci­at­ing pain and suf­fer­ing. Midazolam was impli­cat­ed in botched exe­cu­tions in Oklahoma and oth­er states. If the Oklahoma court sets exe­cu­tion dates and they are car­ried out, the evi­dence from those exe­cu­tions is like­ly to be pre­sent­ed as part of the trial.

The cas­es of the men select­ed for exe­cu­tion are emblem­at­ic of prob­lems through­out the death-penal­ty sys­tem. The sev­en men fac­ing pos­si­ble exe­cu­tion dates include at least three with seri­ous men­tal ill­ness, one of whom was allowed to rep­re­sent him­self at tri­al; at least one who has brain dam­age; at least two who expe­ri­enced severe child­hood trau­ma; and one with a strong claim of inno­cence. Those impair­ments are reflec­tive of nation­al trends – all but one of the pris­on­ers exe­cut­ed 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.

Interference With the Julius Jones Clemency Proceedings

Julius Jones, for whom the state is seek­ing an October 28 exe­cu­tion date, has gained inter­na­tion­al atten­tion for his claims of inno­cence, racial bias, and offi­cial mis­con­duct. More than six mil­lion peo­ple have signed a peti­tion ask­ing for clemen­cy for Jones, and a poll con­duct­ed in June 2021 found that 60% of Oklahomans are in favor of Governor Kevin Stitt com­mut­ing Jones’ sen­tence. The Oklahoma Pardon and Parole Board had already sched­uled a September 13 com­mu­ta­tion hear­ing but can­celed the hear­ing in antic­i­pa­tion that death war­rants would be issued and sched­uled clemen­cy hear­ings for each of the sev­en men to take place short­ly before the pro­posed execution dates. 

Members of Oklahoma’s Legislative Black Caucus and sup­port­ers of Jones’ inno­cence claims blast­ed O’Connor for inter­fer­ing with the com­mu­ta­tion process. ​“It is shock­ing-and quite frankly, out­ra­geous-that the promise of a fair hear­ing, which for­mer AG Mike Hunter agreed Mr. Jones has a right to, might now be short-cir­cuit­ed because of this rush to resume exe­cu­tions,” Rev. Cece Jones-Davis, founder of the Justice for Julius Campaign said. 

In an inter­view with the Oklahoma University stu­dent news­pa­per, the OU Daily (Jones was a stu­dent at the uni­ver­si­ty at the time of his arrest), Jones-Davis said, ​“It feels evil. It feels like the Attorney General is in a rush in some way to kill (Julius) when there are so many oth­er cred­i­ble claims to his inno­cence. … I think that the Attorney General would like noth­ing more than to see him dis­ap­pear because of the nation­al out­cry that has occurred on his behalf.”

“I am appalled that the attor­ney gen­er­al would request a date for Mr. Jones’ exe­cu­tion before pro­vid­ing Mr. Jones and his legal team with the oppor­tu­ni­ty to present his case at his September 13 com­mu­ta­tion hear­ing,” Oklahoma City State Representative Jason Lowe said in a state­ment released to the media. ​“It is actions like these that rein­force the public’s doubt and dis­trust in our crim­i­nal jus­tice sys­tem. I implore the attor­ney gen­er­al to with­draw his request for an exe­cu­tion date, as Julius Jones has a con­sti­tu­tion­al right to a fair hear­ing free of political influence.” 

Fellow Black cau­cus mem­ber, Tulsa State Representative Regina Goodwin, also issued a state­ment crit­i­ciz­ing O’Connor’s action. ​“AG O’Connor’s rushed request to exe­cute [Julius Jones] on October 28, before all is heard, rips fur­ther into trust and attempts to also kill due process,” Goodwin said.

Deon Osborne, asso­ciate edi­tor of the Black Wall Street Times, not­ed that this was the sec­ond time Oklahoma pros­e­cu­tors had attempt­ed to obstruct the com­mu­ta­tion process, cit­ing a pri­or law­suit Oklahoma County District Attorney David Prater filed against parole board mem­bers. He said O’Connor’s action ​“has many won­der­ing whether the crime obstruc­tion of jus­tice applies to state offi­cials who attempt to influ­ence the deci­sions of parole board mem­bers before they’ve even con­duct­ed a hearing.” 

Oklahoma’s Catholic bish­ops also con­demned the state’s efforts to resume exe­cu­tions. In a joint state­ment, Most Rev. Paul S. Coakley, Archbishop of Oklahoma City, and Most Rev. David A. Konderla, Bishop of Tulsa, said, ​“We are dis­ap­point­ed and sur­prised by the state’s haste to set exe­cu­tion dates for six men on death row at the same time a fed­er­al court is review­ing Oklahoma’s lethal injec­tion pro­to­col to deter­mine if it is con­sti­tu­tion­al. This deci­sion also may pre­empt and void a com­mu­ta­tion hear­ing already set by the state for one of the men, Julius Jones.” 

The bish­ops also high­light­ed sys­temic con­cerns with inno­cence, arbi­trari­ness, and the high cost of cap­i­tal pun­ish­ment, urg­ing the state to turn to ​“oth­er means to exact jus­tice and pro­tect our com­mu­ni­ties with­out the use of cap­i­tal pun­ish­ment.” The state­ment con­clud­ed, ​“Ultimately, cap­i­tal pun­ish­ment denies the oppor­tu­ni­ty for repen­tance and dimin­ish­es the dig­ni­ty of all human life.”

Oklahoma has not car­ried out an exe­cu­tion since January 15, 2015, when the Oklahoma Department of Corrections put Charles Warner to death using a chem­i­cal that was not autho­rized by the state’s exe­cu­tion pro­to­col. A report by The Oklahoman revealed that the state had used potas­si­um acetate, a chem­i­cal used to de-ice air­plane wings, in the exe­cu­tion, instead of potas­si­um chlo­ride. Warner’s last words were ​“my body is on fire.”

The state’s pre­vi­ous exe­cu­tion, in which Clayton Lockett was put to death on April 29, 2014, was hor­ri­bly botched. After the exe­cu­tion team failed 16 times to set an IV line, one of Lockett’s veins explod­ed. Lockett died 45 min­utes into the pro­ce­dure of what was described at the time as a mas­sive heart attack. Oklahoma put exe­cu­tions on hold in September 2015, after Richard Glossip received a last-minute stay when the state once again obtained the wrong chem­i­cal to car­ry out his execution.