Oklahoma wants to put seven men to death over the next five-months, putting a new death penalty protocol to the test after a series of botched executions that have halted execution since 2015.
The series of executions will be a stress test for several state agencies. Oklahoma is on its second attorney general since it last conducted an execution. The Oklahoma State Penitentiary in McAlester, where all executions here are held, has a new death chamber that has never been used. Oklahoma has a new lethal injection protocol that is still being argued in federal court and the state’s Department of Corrections is on its second director since it last conducted an execution.
In response to questions about why the state wants to schedule the executions so close together, Oklahoma Attorney General John O’Connor said in a statement that “Oklahoma statutes address the timing of the executions.”
O’Connor did not specify which statute he was referring to in his statement and did not respond to multiple follow up requests by The Frontier. A spokesman for O’Connor said that questions related to the timing of executions should be referred to the DOC. A DOC spokesman told The Frontier the department had no comment on executions due to the pending federal lawsuit.
O’Connor said in a court filing earlier this month that the Pardon and Parole Board had requested a minimum of three weeks between executions so it can hold clemency hearings for each prisoner. Oklahoma laws mandate clemency hearings must take place 21 days prior to an execution.
“You would hope after all the reports and investigations and after the botched executions and almost execution of Glossip with the wrong drug, that Oklahoma would renew its commitment to being deliberate in the execution process,” said Ngozi Ndulue, the senior director of Research and Special Projects for the nonprofit Death Penalty Information Center. “But scheduling these seven executions in such close proximity and essentially shortcutting the judicial review of the state’s protocol does not inspire confidence.”
Even with executions on hold for the past six years, Oklahoma has put more prisoners to death since 1976 than every other state except Texas and Virginia.
It has been 18 years since the state executed so many death row inmates in such a short period of time.
In 2003, Oklahoma executed 12 men between March 18 and July 29. Since then, the state has never executed more than six people in one year.
While use of the death penalty is on the decline nationwide, there’s still plenty of support for it in Oklahoma. In 2016, voters codified the use of the death penalty in the state’s constitution.
Ndulue called Oklahoma’s proposed execution timeline “really troubling.”
“It’s troubling both from a government accountability reason and also to think about processes that are being shortcut by scheduling them like this,” she said. “It really shows a disregard for other institutional actors, courts, pardon and parole boards, who are now forced to keep up with this timeline that seems unnecessary and rushed.”
The Court of Criminal Appeals has yet to rule on O’Connor’s requested execution dates, but its decision could “come any day now,” Oklahoma Pardon and Parole Board Executive Director Tom Bates said during a meeting last month.
The compacted nature of the proposed execution schedule has already had an impact. The Pardon and Parole Board, which has spent more than a year creating new policies in order to hear commutation applications from death row prisoners, held a special meeting in August to write another new policy that allows it to hold commutation and clemency hearings at the same time. Since the Court of Criminal Appeals is yet to rule on the proposed execution dates, at least a few of those pre-scheduled clemency hearings will be pushed back.
Clemency hearings, where the board hears from both those seeking to have their execution halted and from victims and law enforcement advocates seeking to keep the execution on the books, are required by Oklahoma law to be set for inmates who have a scheduled execution date. They must be held no fewer than 21 days before the scheduled execution, and having so many executions potentially scheduled in such a short time frame meant the board had to tentatively set seven clemency hearings before the Court of Criminal Appeals had even ruled on the proposed execution dates.
The last time Oklahoma’s Pardon and Parole Board held a clemency hearing was in 2015, and the board has completely turned over since that time. Now it will hold seven clemency hearings in five months. The board passes its recommendations on clemency to the governor, who makes the final decision.
Only four death row inmates have received clemency in Oklahoma’s history, according to the Death Penalty Information Center.
Bates has seen the death penalty process from the viewpoint of multiple agencies, having worked for 15 years at Attorney General’s Office before moving to the Pardon and Parole Board.
He told The Frontier that “all the stakeholders,” including the Department of Corrections, the Attorney General’s office, and Stitt’s office, “agreed this schedule was doable.”
Stitt’s office did not respond to requests for comment for this story.
At least five of the proposed executions would take place prior to the Feb. 28 federal court trial where attorneys arguing on behalf of more than two dozen Oklahoma death row prisoners are challenging Oklahoma’s execution protocol. None of the seven men Oklahoma seeks to execute in the coming months are part of the lawsuit. Six of the prisoners are no longer part of the legal challenge because they declined to suggest an alternative method of execution should the court rule against lethal injection. The seventh, Bigler Stouffer, never joined the lawsuit.
The lawsuit is challenging Oklahoma’s lethal injection protocol, arguing that the drugs used to carry out executions in the state, midazolam, potassium chloride and vecuronium bromide may cause pain and suffering, going against the U.S. Constitution’s ban of cruel and unusual punishment.
There may be more than just a coincidental connection between the proposed execution dates and the federal trial. In a 43-page order filed in mid-August, in a footnote, United States District Judge Stephen Friot said that a series of successful executions prior to Feb. 28 could provide evidence on the state’s new drug protocol before the case is called for trial.
Oklahoma hasn’t held an execution using its new protocol, but Friot said that there “may well be a track record … of the new Oklahoma protocol by the time this case is called for trial.”
O’Connor did not respond to questions about the timing of the executions and if it was connected to the federal trial date.
“What was so urgent that all these dates had to be set at once after a six-year pause in executions and a pause that happened because of failures in the way executions were being carried out in the state?” Ndulue asked. “It does raise questions about if (the proposed execution dates are) a form of gamesmanship, because the trial is set right after.”
O’Connor, in a statement provided through a spokesman, said the victims’ families, some of whom have seen decades pass since their loved ones were killed, “deserve the justice that was determined by a judge and jury.”
O’Connor, who was appointed as Oklahoma’s Attorney General earlier this year by Stitt, blamed the lengthy wait on “appeals and the challenges to the execution process and drugs.” He did not reference Oklahoma’s six-year moratorium after the series of high-profile fumbles with the state’s old execution protocol.
Megan Lambert, legal director for the Oklahoma ACLU, said Oklahoma’s prior execution difficulties should make the state more careful, not less.
“Setting seven executions in five months would be risky for any state, but for Oklahoma it’s reckless,” she said. “We have not had one here since 2015 because of our catastrophic failures in multiple executions. You’re not just dealing with the logistical issues of taking a human life, but in doing so in accordance with the law, which Oklahoma has found difficult.”
After 2003, when Oklahoma executed 14 people under Democratic Gov. Brad Henry, the state’s execution schedule slowed, never putting more than six people to death in a year. But in 2014, under Gov. Mary Fallin and former state Attorney General Scott Pruitt, Oklahoma upped the ante and aimed for a first: two executions in the same night.
Never before had Oklahoma tried to execute two people in one day. The closest it had come before was in 2006, when Eric Allen Patton and James Patrick Malicoat were executed two days apart.
On April 29, 2014, prison officials at Oklahoma State Penitentiary — also known as “Big Mac” — planned to execute both Clayton Darrell Lockett and Charles Frederick Warner.
Lockett was executed with well-publicized difficulty. After witnessing the horror of Lockett’s death, officials paused Warner’s execution for several months. He was eventually executed the following January.. The state then made multiple attempts to execute Richard Glossip, but on its final effort, officials learned they had secured an unapproved drug — potassium acetate rather than potassium chloride. This forced the state to call off Glossip’s execution once again. State officials later learned they may have also used potassium acetate in Warner’s execution.
The repeated errors led then-Attorney General Scott Pruitt to call for a halt to executions in Oklahoma.
Ngozi told The Frontier the proposed pace of the upcoming executions was concerning because the condensed nature might not only make it more likely for a mistake to occur, but also more likely that it would not be discovered in time before the next execution.
“If there’s a problem, will it be discovered in time?” she asked. “What kind of pressure are you putting on everyone by scheduling them this way?”
Proposed execution dates
John Grant — Either Oct. 28 or Nov. 18
Julius Jones — Either Nov. 18 or Dec. 9
Bigler Stouffer — Either Dec. 9 or Dec. 30
Wade Greely Lay — Either Dec. 30 or Jan. 20
Donald Grant — Either Jan. 20 or Feb. 10
Gilbert Postelle — Either Feb. 10 or March 3
James Coddington — Either March 3 or March 24