By Sonam Hundal and Hannah Adams
OKLAHOMA CITY, OK — The U.S. Court of Appeals for the Tenth Circuit Wednesday granted a Motion for Stay of Execution for two Oklahoma prisoners, John Grant and Julius Jones —both of whom are convicted murderers, to address questions concerning the ethics of forcing prisoners to choose the method of their own executions.
Grant was scheduled to be executed Thursday.
The death row plaintiffs argue that ordering death row inmates to select a method for their own executions “demonstrates a hostility towards religion generally,” and that it forces them to go against their sincere beliefs or face “imminent execution.”
The plaintiffs also mention that because each of the individuals agreed to and signed the Third Amended Complaint—which outlines four alternative methods of execution—the Supreme Court should have sufficient grounds to grant the motion.
The order granting the stay of execution states that “the State’s chosen method of execution [must present] ‘a substantial risk of severe pain'” and also that “the risk is substantial in comparison to other known and available alternatives.”
The district court, however, claimed that “the plaintiffs’ claim failed” to meet the first requirement, stating that “[t]here is a fact issue as to whether midazolam performs as well, for execution purposes, as defendants claim it does.” It also raised the question of whether or not the drug “will reliably render the prisoner insensate to pain” for the amount of time that is necessary to avoid what is considered an unconstitutional level of pain.
The district court required the plaintiffs to choose which of the four alternative methods presented by the Third Amended Complaint (TAC), which all plaintiffs alleged were “feasible, available, readily implemented and would significantly reduce a substantial risk of severe pain,” they’d prefer for their own execution.
Appellants’ religious views, however, contradicted with the district court’s rule that they must choose a method of execution, claiming that it is “suicide.”
Despite satisfying the factors necessary for a stay of execution, the U.S. Court of Appeals for the Tenth Circuit claims that “the delay in developing the new protocol, coupled with the relatively short time frame” to finish the trial will “weigh against the Appellees’ assertions of harm.”
Nevertheless, Grant and Jones have been granted a partial motion and stay of execution.
An attorney for the plaintiffs of death row, Dale Baich, stated, “The Tenth Circuit did the right thing by blocking Mr. Grant’s execution…(this order) should prevent the State from carrying out executions until the federal district court addresses the ‘credible expert criticism’ it identified in Oklahoma’s execution procedures. Those issues will be carefully reviewed by the court at the trial scheduled in February.”
Earlier this week, an Oklahoma City federal judge denied a preliminary injunction against Grant’s upcoming execution as well as the executions of other Oklahoman death row inmates, including Jones.
The decision was made in spite of the fact that the Oklahoma Attorney General has a standing on-the-record commitment to not involve plaintiffs in the pre-existing lawsuit against Oklahoma’s lethal injection execution protocol since it still has a pending status in the district court, a trial on the merits scheduled for February 2022 and the prisoners’ reinstatement on the lawsuit from Oct. 15.
After the federal district court dismissed the inmates from the lawsuit on Aug 11., the attorney general had pursued and subsequently obtained execution dates for the individuals.
However, in the same ruling, the district court addressed factual concerns regarding Oklahoma’s execution protocol and whether or not it created an unconstitutional risk of pain and suffering. The court then scheduled a trial on that issue for the 26 inmates, which is set to begin in February 2022.
On Oct. 15, the U.S. Court of Appeals for the Tenth Circuit ordered for the reinstatement of the dismissed plaintiffs. Upon their reinstatement, the plaintiffs requested that the attorney general honor his standing commitment to not order execution while the lawsuit has a pending status in the district court.
In spite of this, the attorney general refused to retire the execution dates, which forced the prisoners to request that the federal court follow through with the promise made by the state and then subsequently appeal to the Tenth Circuit.
The postponed executions as a result of Wednesday’s mandate are the first executions scheduled since the Clayton Lockett incident in 2014 and the execution of Charles Warner in 2015 in which the wrong drug was used, as well as the near-execution of Richard Glossip in 2015 that was terminated when the executioners realized that they had almost used the wrong drug once more; the governor called off the execution at that point.
Critics say Oklahoma’s new execution protocol poses a high-risk, as it employs the same drug mixture that was used in preceding problematic executions. Additionally, it lacks specific plans for training and other protocols.
The same three drugs, including midazolam, a faulty sedative, were used previously in the above-mentioned problematic execution precedents. The new protocol also continues to employ a paralytic, which adds another dangerous aspect of the process, claim critics, one that serves to obscure problems from the public view.
Those opposed to the executions note that, based on past executions, the protocol begets a grave risk that the prisoners will be subjected to agonizing pain from pulmonary edema, a terrible experience that is reminiscent of waterboarding, critics state.
The plaintiff lawyers argue the incompleteness of Oklahoma’s new protocol eliminates the court’s ability to thoroughly review executions; by extension, the lack of transparency and careful judicial review undermines the court’s ability to ensure executions that are constitutional and humane.