Oklahoma Executes John Grant After Supreme Court Vacates Stay; Execution Proceeds Despite Pending Trial on Constitutionality of State’s Lethal-Injection Process

Within hours of a par­ti­san vote in the United States Supreme Court lift­ing an appeals court stay, Oklahoma exe­cut­ed John Grant on October 28, 2021, end­ing a six-year hia­tus brought on by a series of exe­cu­tion mishaps in 2014 and 2015. Eyewitnesses report­ed that Grant con­vulsed more than two dozen times and vom­it­ed as Oklahoma put him to death with a con­tro­ver­sial three-drug exe­cu­tion cock­tail whose con­sti­tu­tion­al­i­ty is the sub­ject of a fed­er­al-court tri­al sched­uled to begin in February 2022. 

The Supreme Court’s action, over the dis­sents of Justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan, with Justice Neil Gorsuch not par­tic­i­pat­ing, came just hours before Grant’s sched­uled 4:00 p.m. Central exe­cu­tion. Without opin­ion, the Court lift­ed an emer­gency order the U.S. Court of Appeals for the Tenth Circuit had issued October 27 that had stayed Grant’s exe­cu­tion and the November 18 exe­cu­tion of Julius Jones.

Grant and Jones are the first of sev­en pris­on­ers Oklahoma has sched­uled for exe­cu­tion between October 2021 and mid-March 2022. The exe­cu­tions were sched­uled 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. Jones’ exe­cu­tion was sched­uled one week after the Oklahoma Pardon and Parole Board rec­om­mend­ed that his death sen­tence be com­mut­ed based upon seri­ous doubts as to his guilt.

Associated Press reporter Sean Murphy, who wit­nessed the exe­cu­tion, said Grant expe­ri­enced ​“full-body” con­vul­sions after being inject­ed with mida­zo­lam, con­vulsed ​“about two dozen times,” and vom­it­ed before exe­cu­tion per­son­nel cleaned off his face. Grant con­tin­ued to con­vulse and vom­it­ed again before he was declared to be unconscious. 

The Tenth Circuit pan­el had vot­ed 2 – 1 to stay Grant’s and Jones’ exe­cu­tions, cit­ing the inequity of exe­cut­ing the men using a method the fed­er­al court had found suf­fi­cient­ly prob­lem­at­ic to order a tri­al to resolve issues con­cern­ing its con­sti­tu­tion­al­i­ty. Allowing the exe­cu­tions to go for­ward, the appeals court wrote, cre­at­ed an unac­cept­able risk that they would be ​“unable to present what may be a viable Eighth Amendment claim to the fed­er­al courts before they are exe­cut­ed using the method they have challenged.”

As it had done in vacat­ing 22 stays of exe­cu­tions and pre­lim­i­nary injunc­tions dur­ing the fed­er­al government’s exe­cu­tion spree in the last six months of the Trump pres­i­den­cy, the Court again offered no expla­na­tion for revers­ing the appeals court’s order.

Grant’s exe­cu­tion was the first in Oklahoma since its 45-minute botched lethal-injec­tion exe­cu­tion of Clayton Lockett in 2014 and its exe­cu­tion of Charles Warner in 2015 using an unau­tho­rized exe­cu­tion drug. Executions were halt­ed in the state after the abort­ed attempt to exe­cute Richard Glossip in September 2015, when the state again obtained the wrong execution drug.

Oklahoma’s attor­ney gen­er­al John O’Connor has pushed for the state to resume exe­cu­tions after years-long pause, despite the ongo­ing law­suit about how the state uses lethal injec­tion. Grant and Jones were among six men dis­missed from the law­suit by dis­trict court judge Stephen P. Friot for not iden­ti­fy­ing an alter­na­tive method by which they could be exe­cut­ed. Earlier in October, the cir­cuit court reversed Friot and rein­stat­ed the men as plain­tiffs in the suit. Although then-Attorney General Mike Hunter had told Judge Friot in March 2020 that the state would not seek exe­cu­tions while the law­suit was pend­ing, and Friot told the coun­sel for the pris­on­er dur­ing a May 2020 hear­ing ​“if we should have any indi­ca­tion that that will hap­pen, I will be, to put it mild­ly, imme­di­ate­ly avail­able,” Friot denied the pris­on­ers’ request to enjoin their executions. 

Grant was con­vict­ed and sen­tenced to death in 2000 for the mur­der of a prison cafe­te­ria work­er while he was incar­cer­at­ed for a rob­bery com­mit­ted when he was a teenag­er. On October 5, 2021, a divid­ed Oklahoma Pardon and Parole Board denied Grant clemen­cy by a vote of 3 – 2. In a state­ment released after the vote, Grant’s clemen­cy lawyer, Sarah Jernigan char­ac­ter­ized the deci­sion as the cul­mi­na­tion of insti­tu­tion­al fail­ures in Grant’s life. Jernigan not­ed that Grant had suf­fered from chron­ic abuse at home as a child, and as ear­ly as 9‑years-old he began steal­ing food and clothes to pro­vide for his fam­i­ly. When he was sent to a juve­nile deten­tion cen­ter at the age of 12, she said, he expe­ri­enced rou­tine “[w]hippings, rapes, and assaults.”

Jones was con­vict­ed and sen­tenced to death in 2002 on charges that he had mur­dered Paul Howell, a promi­nent white busi­ness­man, in 1999. Jones case has gained inter­na­tion­al atten­tion amid evi­dence of racial bias and inno­cence. On September 13, the Oklahoma Pardon and Parole Board vot­ed 3 – 1 to rec­om­mend that Governor Kevin Stitt com­mute Jones’ sen­tence to a life term with the pos­si­bil­i­ty for parole.

TIMELINE of APPEALS

• 2000: John Marion Grant sen­tenced to death.
• 2002: Julius Jones sen­tenced to death.
• April 29, 2014: The exe­cu­tion of Clayton Lockett is botched. It takes more than 40 min­utes, between when the first injec­tion takes place and when Lockett ulti­mate­ly dies. Lockett writhes in his restraints, breathes heav­i­ly and speaks unin­tel­li­gi­bly dur­ing this time. 
• January 15, 2015: Oklahoma exe­cutes Charles Warner using a drug not autho­rized in the state’s exe­cu­tion pro­to­col. Warner’s last words are ​“My body is on fire.”
• September 30, 2015: Oklahoma calls off the exe­cu­tion of Richard Glossip hours before it was sched­uled to begin after learn­ing that the Oklahoma Department of Corrections had again received the wrong drugs to car­ry out the execution. 
• October 8, 2015: Oklahoma Governor Mary Fallin halts exe­cu­tions in the state after an autop­sy con­firms prison offi­cials used an unau­tho­rized drug in the exe­cu­tion of Charles Warner, accord­ing to the Associated Press. Citing past botched exe­cu­tions, Oklahoma death-row pris­on­ers, includ­ing Grant and Jones, go on to file a law­suit in fed­er­al court, chal­leng­ing the con­sti­tu­tion­al­i­ty of the state’s lethal injection practice.
• May 5, 2020: U.S. District Court Judge Stephen P. Friot tells defense coun­sel that Attorney General Mike Hunter has rep­re­sent­ed that pros­e­cu­tors will not seek to car­ry out exe­cu­tions while the law­suit is pend­ing, accord­ing to court tran­scripts.
• August 11, 2021: Six peo­ple, includ­ing Grant and Jones, are removed from the law­suit, per a rul­ing by Judge Friot, for not respond­ing to an inter­roga­to­ry requir­ing them to des­ig­nate an alter­na­tive method by which they could be executed.
• August 26, 2021: New attor­ney General, John O’Connor, files a motion in the crim­i­nal appeals court seek­ing to exe­cute sev­en men, includ­ing Grant and Jones. At this time, O’Connor asserts that sev­en pris­on­ers could be exe­cut­ed, because they were not involved in the law­suit. Six, includ­ing Grant and Jones, had been dis­missed from the fed­er­al law­suit and the sev­enth is not a par­ty to the lawsuit.
• September 13, 2021: The Oklahoma Pardon and Parole Board rec­om­mends, 3 – 1, that Governor Kevin Stitt com­mute Jones’ sen­tence to a life term with the pos­si­bil­i­ty for parole, cit­ing doubts as to Jones’ guilt.
• September 20, 2021: The Oklahoma Court of Criminal Appeals issues death war­rants, set­ting exe­cu­tion dates for the sev­en men, including Grant. 
• October 5, 2021: A divid­ed Oklahoma Pardon and Parole Board denies Grant clemency.
• October 15 2021: Plaintiffs who were removed from the law­suit are rein­stat­ed, after the U.S. Court of Appeals for the Tenth Circuit revers­es Judge Friot’s August 2021 ruling. 
• October 25, 2021: Judge Friot denies plaintiff’s request for injunc­tion filed by five peo­ple who are sched­uled to be exe­cut­ed, includ­ing Grant and Jones, who asked for the exe­cu­tions to be halt­ed until the out­come of the federal.
• October 27, 2021: The Tenth Circuit grants a motion to stay the exe­cu­tion of Grant and Jones. Oklahoma appeals to the U.S. Supreme Court.
• October 28, 2021: The U.S. Supreme Court vacates the stays of exe­cu­tion and Oklahoma exe­cutes John Grant.