In the next few weeks, two very different sets of events could be set in motion that will determine the lives of seven men on Oklahoma’s death row.
If the state has its way, the men – John Marion Grant, Julius Jones, Bigler Jobe Stouffer, Wade Greely Lay, Donald A Grant, Gilbert Ray Postelle, and James Allen Coddington – will be killed, as planned, at regular intervals between this month and next spring. Their deaths will mark Oklahoma’s first executions for more than six years, after a series of disastrous botched killings caused one of the country’s most prolific death chambers to go quiet.
However, most of these men are part of a massive lawsuit from death-row prisoners challenging Oklahoma’s lethal injection process as unconstitutional cruel and unusual punishment – torture, in other words. The suit argues that even after a multi-year moratorium and extensive investigation, the state hasn’t changed its ways since it graphically executed multiple people with the wrong drugs. The Oklahoma attorney general’s (AG) office previously promised to halt executions while the case went forward, only to seemingly change course when a new AG came to power in 2021.
If the prisoners’ lawsuit is successful, their executions could be delayed well into 2022, pending the results of a trial that will put the state’s execution record under renewed scrutiny and could change the Oklahoma death penalty forever. Along with a growing awareness of the problems with the criminal justice system in America, and a burgeoning innocence movement to free the state’s most famous death row inmate, Julius Jones, the halting of Oklahoma’s main execution method would be a sign that the state’s decades of smooth, popular executions could be coming to an end. Otherwise, the prisoner-plaintiffs begin dying on 28 October.
“Injustice does not even describe what would result if these plaintiffs are executed and the federal court later decides that the current Oklahoma protocol is unconstitutional,” federal public defender Dale Baich, who is spearheading the appeal, told The Independent. “The executions could not be undone.”
His team has moved in federal court to pause the killings at least until the trial can play out.
The wide-ranging case has been ping-ponging through the state and federal legal system since 2014. Its main claim is that Oklahoma’s three-drug execution cocktail of midazolam, a short-acting sedative; vecuronium bromide, which stops breathing; and potassium chloride, which stops the heart, doesn’t do enough to put prisoners out before they are executed.
Instead, the suit argues, autopsy evidence suggests the drugs make prisoners feel like they’re being drowned via a “flash pulmonary edema” as well as “burned alive”. It’s a combination so cruel it violates the US Constitution’s eighth amendment and produces “severe pain, needless suffering, and a lingering death”, the original lawsuit claims. More than 30 death-row inmates are now a part of the action.
The case has taken on new urgency in recent months, thanks to a number of duelling developments. In August, a federal court found that the trial could go forward, but scrapped the claims of six men because they hadn’t selected an alternative way to die. Less than two weeks later, the Oklahoma attorney general moved to advance the death-penalty process, and the group got their execution dates. However, in September, something wholly unexpected happened in Oklahoma, the state that’s executed the third most people in modern American history.
On 13 September, 2021, the Oklahoma Pardon and Parole Board recommended 3-1 that the governor commute the death sentence of Julius Jones. Jones has claimed for the last 20 years he was wrongfully convicted as a 19-year-old for a 1999 murder of a white man in the Oklahoma City suburbs. A growing body of evidence suggests the conviction of Jones, who is Black, was tarred with police and prosecutorial misconduct as well as systemic racism. The commutation recommendation, the high point of a growing “Justice for Julius” movement so far, was the first of its kind in Oklahoma history.
Then, on Friday, barely a week before the lethal injections are set to begin anew, a federal appeals court brought the six men, including Jones, back into the case, ruling that the lower court had abused its discretion by passing a final judgement on their executions in the middle of a constitutional challenge. A trial is set for the end of February.
That would seem to be the end of things. Under the previous attorney general, Mike Hunter, the state agreed with death-row inmates to hold off on executions until their lawsuit was done.
“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,” a federal judge presiding over the legal challenge said last year. “I will be, to put it mildly, immediately available.”
All of this would seem to suggest that those on Oklahoma death row can breathe a sigh of relief. Not in the slightest.
Mr Hunter resigned in May 2021, during a marital scandal, and the new attorney general John O’Connor has made no such promises to hold off on using the death penalty against the men in the appeal. Mr O’Connor, along with Republican governor Kevin Stitt, has pushed hard to resume executions, which Mr Stitt said in 2020 would “deliver accountability and justice to the victims who have suffered unthinkable loss and pain”.
The Independent has reached out to the attorney general’s office, as well as the governor’s office, for comment.
The whole present state of affairs, from the eleventh hour legal appeals to questions over the safety of the state’s lethal injection drugs, is quickly turning into an exercise in déjà vu for an era that was supposed to be behind Oklahoma.
“Why is Oklahoma so dead set on the death penalty?” Reverend Don Heath, chair of the Oklahoma Coalition to Abolish the Death Penalty, told The Independent. “Are people more violent? Are people less merciful, more vengeful? No. But I think you can say that our criminal justice system is more broken.”
Starting in 2014, the state botched three executions in short order, prompting a wholesale re-evaluation of the death penalty. At least temporarily.
In April 2014, it took executioners 17 attempts to set an IV line on Clayton Lockett, who began moaning, groaning, and attempting to speak after he was supposed to be unconscious. Witnesses were ushered out and a curtain was pulled over the death chamber, where Lockett died of a heart attack. A 2015 autopsy revealed he had accidentally been given the wrong execution drug.
That same year, Charles Warner told onlookers “my body is on fire” during his execution in January, which mistakenly used the same wrong drug, potassium acetate, that had killed Lockett.
By September, Oklahoma was about to bungle a third killing, that of Richard Glossip, before then-governor Mary Fallin called off the execution at the least minute after she learned he too was about to be injected with the incorrect poison. Glossip came within two hours of death.
The spate of lethal and near-lethal mistakes prompted bipartisan condemnation across the country. Former president Barack Obama said the state’s practices were “deeply troubling”, while Ms Fallin, a Republican, pushed for a moratorium on state executions.
“Until we have complete confidence in the system, we will delay any further executions,” she said in 2015.
The execution errors set off a period of soul searching for a state known for its enthusiastic use of capital punishment. The Oklahoma attorney general ordered a grand jury investigation into the state’s execution practices, and a wider bipartisan commission concluded in 2017 that the state’s executions should not resume until the remedy of a “disturbing” host of “systemic flaws”, ranging from poor policing and racism to outgunned defence attorneys and under-scrutinised execution protocols.
All told, this state of affairs suggested Oklahoma was executing innocent people and abusing the guilty, the Oklahoma Death Penalty Review Commission argued.
“It is undeniable that innocent people have been sentenced to death in Oklahoma,” they wrote.
Three years later, the state announced its intentions to bring back executions, saying it had located a “reliable supply of drugs”.
"It is important that the state is implementing our death penalty law with a procedure that is humane and swift for those convicted of the most heinous of crimes," Governor Stitt said at the time.
Oklahoma stills plans to use the same three-chemical cocktail as it did before the review, and won’t disclose where it sources the drugs. States across the country have resorted to ever-more opaque methods of securing lethal injection drugs, as most mainstream pharmaceutical companies have moved away from supplying executions, raising questions about safety and medical ethics.
Civil rights groups have blasted the seeming lack of reform.
“The government’s actions remain shrouded in secrecy and they continue to refuse to share important details of the execution protocol. In short, the government’s stated position is ‘trust us,’” Ryan Kiesel, then the director of the Oklahoma branch of the American Civil Liberties Union (ACLU), said at the time.
“Combine the random nature of who gets the death penalty, with the state’s repeated failures in carrying out executions, the government’s refusal to share information, and the possibility of Oklahoma executing an innocent person, and it just seems like common sense that we should not trust the government with this awesome and irrevocable power.”
The Oklahoma Department of Corrections declined to comment, citing pending litigation.
This is still Oklahoma, long home to one of the nation’s most top five most aggressive death penalty prosecutors. This is a state where people in 2016 voted overwhelmingly to take the unusual step of amending the state constitution to explicitly guard against civil rights challenges, in this case by stating the death penalty wasn’t cruel and unusual punishment, regardless of method, even after the botched killings. Oklahoma, in other words, isn’t going to end executions without a fight.
Rights advocates are still not convinced the state has learned its lesson, even as it prepares to execute another seven people.
“It is a fact that 10 people have been exonerated from Oklahoma’s death row because of prosecutorial misconduct or actual innocence, so I would say that their track record is not great.” Cece Jones-Davis, a leader of the Justice for Julius movement, told The Independent. “It is a racially biased practice. You see that statistically in how it is applied in the state of Oklahoma.”
What happens next, as is often the case on death row, is in a state of dizzying legal limbo. Multiple men have already appealed their impending executions to make time for their impending appeals in federal court. A last-minute request from state officials could push back the frenzied execution timeline until after the February trial.
If the 2022 trial goes forward and drags on, as appeals tend to do in the world of capital punishment, the state’s execution drugs could expire, as they have in places like Arkansas in 2019. Though that state is an example of the alternative as well: it put four men to death in eight days to use its lethal injections before they went bad.
In the meantime, death row inmates nearing their execution dates have been put on “death watch”, a state policy that moves inmates into cells closer and closer to the execution chamber as time ticks down each week, ostensibly for security reasons. Most of their possessions beyond Bibles, pens and paper, and a few photos, have been boxed up, in preparation to be sent to their families.
“[Julius Jones] recently in the last few days had to fill out paperwork of what he would like his last meal to be. I can only imagine what’s going through his mind and how he’s feeling,” Ms Jones-Davis, the Justice for Julius activist, said.
“It feels to me like psychological warfare. I’m not able to speak to him, but I just hope he’s holding up well under the circumstances ... It feels like it’s a method to make someone malleable to their death, to break them down psychologically.”
Such is the way of justice on death row: appeal and death can be progressing at the same time in different directions, all while those at the heart of the matter remain isolated in the middle, waiting to die.
The Independent and the nonprofit Responsible Business Initiative for Justice (RBIJ) have launched a joint campaign calling for an end to death penalty in the US. The RBIJ has attracted more than 150 well-known signatories to their Business Leaders Declaration Against the Death Penalty - with The Independent as the latest on the list. We join high-profile executives like Ariana Huffington, Facebook’s Sheryl Sandberg, and Virgin Group founder Sir Richard Branson as part of this initiative and are making a pledge to highlight the injustices of the death penalty in our coverage.