A federal appeals court has halted Oklahoma’s planned executions of John Marion Grant and Julius Jones, ruling that a lower court had “abused its discretion” in removing the men from a federal lawsuit challenging the state’s lethal injection protocol and ruling against their injunction request earlier this week.
The U.S. Court of Appeals for the Tenth Circuit on Wednesday granted stays for Grant, 60, and Jones, 41. Grant’s execution was scheduled for Thursday, and Jones’ execution was scheduled for Nov. 18. Grant was convicted of murdering Gay Carter, a prison kitchen supervisor, in 1998. Jones was convicted of killing Paul Howell, an Edmond businessman, in 1999. Jones has maintained his innocence since his arrest.
Grant and Jones are among a group of Oklahoma death row inmates that the Oklahoma Court of Criminal Appeals set execution dates for in September. The court set execution dates after the prisoners were dropped from a federal lawsuit that claims Oklahoma’s lethal injection drug protocol is unconstitutional. A trial in the prisoners’ lawsuit is set for February.
Jones, Grant and four other inmates were dropped in August from the lawsuit after a federal judge ruled that since they had not offered an “alternative method” of execution, the state could move forward with their executions.
The death row plaintiffs had argued in court that requiring them to select a method for their own executions would force them to violate their religious beliefs or face death.
The federal appeals court only ruled Wednesday in favor of Grant and Jones. Five other death row prisoners, Bigler Stouffer; Wade Greely Lay; Donald Grant; Gilbert Postelle and James Coddington are still awaiting execution. The court did not indicate why it only ruled in the Grant and Jones cases.
The Oklahoma Pardon and Parole Board voted in September to recommend commuting Jones’ death sentence to life with parole. Gov. Kevin Stitt rejected the board’s recommendation. The state’s Pardon and Parole Board also declined to grant clemency to Grant. Jones’ clemency hearing is scheduled for Monday, but it’s unclear if the hearing will take place after the Wednesday appeals court ruling.
Dale Baich, an attorney for the Oklahoma death row prisoners, said in a statement Wednesday that the appeals court “did the right thing.”
Oklahoma Attorney General John O’Connor said the state would appeal the ruling to the U.S. Supreme Court.
“We are hopeful that the Supreme Court will vacate the stay so that justice can finally be served for the people of Oklahoma, including the families of the victims of these horrific crimes,” O’Connor said in a statement.
The Oklahoma Department of Corrections said late Wednesday they were “prepared to move forward with executions” should the Supreme Court rule in favor of the state and overrule the stay, meaning’s Grant’s execution could still take place.
The Tenth Circuit said in its ruling Wednesday that prisoners who were dropped from the federal lawsuit received “disparate treatment” from inmates who were allowed to continue with their claims. Prisoners who were allowed to continue in the lawsuit put their initials on a form to choose an alternative execution method if Oklahoma’s lethal injection protocol is found to be unconstitutional, while those whose claims were dismissed did not select an alternative method of death.
The appeals court said in its order Wednesday that no case law requires a prisoner to “designate a method of execution to be used in his case by ‘checking a box’ when the prisoner has already identified in his complaint” alternative methods.
“The district court … permitted the other plaintiffs who had “checked a box” … to proceed to trial,” the court wrote Wednesday. Grant, Jones and the other inmates were set for execution despite having offered alternative execution methods in the original lawsuit.
“There’s going to be a trial on this in a few months and the issues are going to be resolved,” Baich told The Frontier. “I think the court is saying ‘What’s the harm in allowing these guys to be included in the trial?’”
That trial looms over the immediate future of the death penalty in Oklahoma. The appeals court ruled on Wednesday that if Grant and Jones were executed before the trial, they risked “being unable to present what may be a viable” argument that the state’s death penalty protocol is unconstituional. The prisoners are arguing that one of the drugs in Oklahoma’s three-drug lethal injection cocktail — midazolam, a sedative — might not prevent them from feeling pain during execution, thus violating a constitutional ban on cruel and unusual punishment.
U.S. District Court judge Stephen Friot wrote in an order setting trial on the prisoners’ claims earlier this year that “there is a fact issue as to whether midazolam performs as well, for execution purposes, as defendants claim it does.”
Midazolam has been used as part of an execution cocktail in several states, and critics have claimed it has played a role in several troubled executions. In 2014, Oklahoma death row prisoner Clayton Lockett writhed and bucked on the execution table before the death chamber curtains were drawn and the procedure was halted. He later died.
The Death Penalty Information Center, a non-partisan organization that tracks executions across the country, lists several similar outcomes in executions where midazolam has been used.
A death row prisoner in Alabama “heaved and gasped” for nearly 15 minutes after the sedative was administered; an Arkansas man “coughed, convulsed and jerked” before eventually dying. In Ohio and Arizona, where the drug had been part of a two-drug cocktail, the deaths of two inmates who were killed in 2014 “were prolonged and accompanied by the prisoners’ gasping for breath.” Arizona later abandoned its use of midazolam, as did Florida.
Correction: An earlier version of this story misidentified who was responsible for denied John Marion Grant’s clemency application.
