Oklahoma Executes Bigler Stouffer After Governor Rejects Board Recommendation for Clemency, Federal Courts Deny Stay

Oklahoma exe­cut­ed Bigler Jobe Stouffer II (pic­tured, at his clemen­cy hear­ing) on December 9, 2021, after Governor Kevin Stitt reject­ing a par­dons board rec­om­men­da­tion to com­mute his sen­tence to life with­out parole and the fed­er­al courts denied his appli­ca­tions to stay his exe­cu­tion. Stouffer, 79, was the old­est pris­on­er put to death in Oklahoma. It was the eleventh and final exe­cu­tion of 2021.

On November 17, 2021, the Oklahoma Pardons and Parole board vot­ed 3 – 2 to rec­om­mend clemen­cy for Stouffer based in part on con­cerns raised by the state’s botched exe­cu­tion of John Grant on October 28, 2021. It was the state’s first exe­cu­tion since botch­ing the exe­cu­tions of Clayton Lockett in April 2014 and Charles Warner in January 2015 and then abort­ing the exe­cu­tion of Richard Glossip in September 2015. 

“That process is obvi­ous­ly flawed,” said Board mem­ber Larry Morris, a retired pro­ba­tion offi­cer, who vot­ed for clemen­cy in Stouffer’s case. ​“We have had indi­vid­u­als on the table suf­fer­ing for 20 and 30 min­utes apiece. And I don’t think that any humane soci­ety ought to be exe­cut­ing peo­ple that way until we fig­ure out how to do it right.”

Governor Stitt reject­ed the Board’s rec­om­men­da­tion on December 3, 2021 with­out explain­ing his grounds for doing so. His exec­u­tive order stat­ed only ​“I have thor­ough­ly reviewed the argu­ments and evi­dence pre­sent­ed in this case and have deter­mined that clemen­cy should be denied.” 

In an order issued December 6, 2021, the U.S. Court of Appeals for the Tenth Circuit also reject­ed argu­ments that Grant’s exe­cu­tion pro­vid­ed grounds to grant Stouffer a stay. Accepting the tes­ti­mo­ny of state anes­the­si­ol­o­gist Dr. Ervin Yen that Grant was uncon­scious and insen­sate dur­ing a fif­teen-minute peri­od in which media wit­ness­es report­ed that he expe­ri­enced more than two dozen full-body con­vul­sions and vom­it­ed, the appeals court said Stouffer had ​“failed to estab­lish a threat that he will be irrepara­bly harmed by a vio­la­tion of his Eighth Amendment rights if he is exe­cut­ed using Oklahoma’s three-drug pro­to­col.” The court’s order nev­er once men­tioned the words ​“con­vul­sions” or ​“vom­it,” instead describ­ing Grant as hav­ing expe­ri­enced a ​“brief peri­od” of ​“regur­gi­ta­tion and res­pi­ra­to­ry dis­tress” after pur­port­ed­ly losing consciousness.

The U.S. Supreme Court denied Bigler’s stay appli­ca­tion on the morn­ing of December 9 and he was exe­cut­ed short­ly after 10:00 a.m. Central time.

Stouffer was tried in 1985 for a mur­der of an ele­men­tary school teacher ear­li­er that same year. His lawyer pre­sent­ed tes­ti­mo­ny from a clin­i­cal and foren­sic psy­chol­o­gist who described Stouffer as a ​“42 year old man, going on 15” suf­fer­ing from an ​“atyp­i­cal per­son­al­i­ty dis­or­der, with imma­ture and hys­ter­i­cal traits” that left him unable to ​“mak[e] a mature, respon­si­ble, adult deci­sion.” His con­vic­tion was over­turned in 1999 because of inef­fec­tive rep­re­sen­ta­tion, but he again was con­vict­ed and sen­tenced to death in 2003. 

Stouffer argued to the Pardon and Parole Board and to Governor Stitt that he had not com­mit­ted the mur­der. ​“There’s been so many things over the years that has not made sense,” his son Trey Stouffer told reporters when he deliv­ered to Governor Stitt a peti­tion with thou­sands of sig­na­tures ask­ing the gov­er­nor for mercy.

Stouffer is the third of sev­en exe­cu­tions Oklahoma has sched­uled in a five-month spree between mid-October 2021 and March 2022. The par­dons board denied clemen­cy to John Grant, who became the first per­son exe­cut­ed by Oklahoma in more than six years. On November 1, 2021, cit­ing doubts about his guilt, the board vot­ed 3 – 1 to rec­om­mend that Julius Jones’ death sen­tence be com­mut­ed to a parole-eli­gi­ble life sen­tence. Four hours before he was sched­uled to be put to death on November 18, Governor Kevin Stitt com­mut­ed Jones’ sen­tence to life without parole.

On November 30, 2021, the Oklahoma Pardon and Parole Board vot­ed 4 – 1 to deny clemen­cy for Donald Grant, a brain-dam­aged pris­on­er who also has been diag­nosed with schiz­o­phre­nia. On December 1, 2021, the Board, also by a 4 – 1 vote, denied clemen­cy for Gilbert Postelle. A Pittsburg County tri­al court ordered the impan­el­ing of a jury to assess Wade Lay​’s com­pe­ten­cy to be exe­cut­ed, and on December 6, 2021 stayed his exe­cu­tion until that tri­al could be con­duct­ed. Clemency pro­ceed­ings have not yet been con­duct­ed in the case of James Coddington, who has a March 10, 2022 exe­cu­tion date. A fed­er­al tri­al on the con­sti­tu­tion­al­i­ty of Oklahoma’s exe­cu­tion pro­to­col is sched­uled to begin in late February 2022.

The two board mem­bers who vot­ed against clemen­cy for Stouffer also expressed reser­va­tions about the state’s con­tro­ver­sial three-drug exe­cu­tion process but said it was not their role to inter­fere. Board mem­ber Richard Smothermon, a for­mer elect­ed District Attorney, said ​“I share the con­cerns but I’m not a doc­tor, and I don’t make the law, and I’m not the one that makes those deci­sions on how that is imple­ment­ed.” Board mem­ber Scott Williams, a min­is­ter and for­mer prison war­den, said he ​“need[ed] a lot more clar­i­ty” about the execution process.

Media wit­ness­es report­ed that the exe­cu­tion pro­ceed­ed with­out any apparent problems.