The execution table in the death-penalty chamber at the Oklahoma State Penitentiary in McAlester. (Photo provided/Oklahoma Department of Corrections)

Editor’s Note: This story has been updated to reflect the news that on Sept. 3 Oklahoma Attorney General John O’Conner push back his original initial timetable to resume executions.

Oklahoma’s death chamber, once among the busiest in the nation, could reopen in October as state officials look to resume executions for the first time in nearly seven years. 

On Aug. 26, Oklahoma Attorney General John O’Conner asked the state Court of Criminal Appeals to schedule execution dates for seven death row prisoners. Among them is Julius Jones, whose innocence claim in the 1999 murder of Edmond businessman Paul Howell has attracted national attention

O’Conner originally requested dates starting Oct. 7 and ending Feb. 10, but on Sept. 3 asked the court to push those dates back in order to meet Department of Corrections protocol. The soonest possible execution date is now Oct. 28. 

The Department of Corrections says it has secured a reliable supply of lethal injection drugs and is prepared to humanely carry out executions. Opponents of capital punishment, including a group of death row prisoners who are challenging the state’s lethal injection protocol in a federal lawsuit, remain concerned that Oklahoma hasn’t done enough to address safety concerns. 

Here are some answers to questions on what the planned return of the death penalty in Oklahoma will look like: 

Why have executions been on hold? 

In October 2015, former Gov. Mary Fallin agreed to halt all executions until a reliable supply of approved drugs became available. The decision was made after a series of botched executions cast doubt on the state’s lethal injection protocol. 

During his scheduled execution on April 29, 2014, Clayton Lockett began to convulse, writhe in pain and speak minutes after medical staff declared him unconscious. In the last of three injections, medical staff injected Lockett with the wrong drug — potassium acetate, rather than the state-approved potassium chloride. 

Then-corrections director Robert Patton called off the execution at 6:56 p.m. after Lockett regained consciousness. Ten minutes later, Lockett had a heart attack and died.

Another death row prisoner, Charles Warner, was supposed to be executed two hours after Lockett. His execution was initially delayed for two weeks and later pushed back to Jan. 3, 2015. 

A state medical examiner’s autopsy report later revealed that the same drug combination administered to Lockett was used on Warner. 

Richard Glossip, sentenced to death for his role in the 1997 murder of Oklahoma City motel manager Barry Van Treese, came within hours of being executed on Sept. 30, 2015. The execution was called off after prison officials informed Fallin that the state had again received potassium acetate instead of potassium chloride. Glossip’s innocence claim has garnered support from numerous state legislators and celebrities

In the years following Fallin’s order, state officials began exploring potential alternatives to the three-drug lethal injection protocol. In March 2018 former Attorney General Mike Hunter and former Corrections Director Joe Allbaugh revealed plans to use nitrogen gas, an unproven and untested method of capital punishment, to carry out executions. Those plans were called off after the state struggled to find a supplier. 

In February 2020, Hunter announced that the state had secured a reliable supply of lethal injection drugs and was prepared to resume executions. However, Hunter agreed to not schedule any executions until a federal lawsuit challenging the state’s lethal injection protocol is settled. 

Why is O’Connor now seeking execution dates? 

A recent ruling in the death row prisoners’ federal lawsuit has given the state a legal opportunity to seek some execution dates. 

On Aug. 11, U.S. District Judge Stephen Friot ruled that the lawsuit challenging the state’s use of midazolam in executions could proceed to a trial, likely sometime in early 2022. However, Friot in his ruling rejected the claims of six death prisoners who did not provide an alternative execution method, clearing the way for the state to set execution dates. A seventh death row prisoner, Bigler Stouffer, never joined the lawsuit. 

In a statement, O’Connor said resuming the death penalty will bring justice to the family of victims and satisfy the majority of Oklahomans who support capital punishment. 

“They have endured the lengthy appeals process while waiting decades for justice for horrific crimes their loved ones suffered. Further delay will only perpetuate that injustice,” O’Connor said. 

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Why is the timing of O’Connor’s request significant? 

Because the federal lawsuit likely won’t be resolved until later next year, the court could potentially rule that Oklahoma’s execution protocol is unconstitutional after the state has carried out several more executions by lethal injection. 

“To allow executions to proceed when there is a chance the court could find a constitutionally unacceptable risk that a person could suffer because of the drug combination used, is just plain wrong,” said Dale Baich, an assistant federal public defender representing the death row prisoners, in an Aug. 26 statement. 

O’Connor’s request also came less than three weeks ahead of Jones’ previously scheduled Sept. 13 commutation hearing. As a result, the commutation hearing will move to a clemency hearing three weeks before Jones’ scheduled execution date. 

“It is shocking, and — quite frankly, outrageous — that the promise of a fair hearing, which former AG Hunter agreed Mr. Jones is entitled to, might now be short circuited because of this rush to resume executions,” said Cece Jones-Davis, director of the Justice for Julius campaign, in an Aug. 26 statement. 

Has the Oklahoma Court of Criminal Appeals officially set execution dates? 

Not yet, though a ruling is expected soon. 

O’Connor’s request spurred several other legal filings that remain pending. Last Friday, Julius Jones’ attorneys filed a motion asking the appeals court to disregard O’Connor’s request. Federal public defenders on Monday filed a motion for the court to reconsider the case dismissals of the six death row prisoners who did not specify an alternative execution method. 

Will Julius Jones’ commutation hearing proceed as scheduled? What about the other six death row prisoners? 

Jones’ Sept. 13 commutation hearing will move to an Oct. 5 clemency hearing if the Oklahoma Court of Criminal Appeals sets execution dates, the state Pardon and Parole Board decided Tuesday afternoon. 

In addition, the board tentatively scheduled clemency hearings for the other six death prisoners approximately three weeks before their scheduled execution. 

Here’s how the clemency hearing process works: 

  • The Pardon and Parole Board listens to testimony from the death row prisoner’s legal counsel, a representative from the state and a victim representative. The prisoner is allotted a maximum of 20 minutes to address the Board at the end of the meeting if they so choose. 
  • The five-member Board votes to recommend or deny clemency to the Governor’s office. If clemency is recommended, the Board may also include a recommendation for how the sentence should be modified, such as life without the possibility of parole. Board members aren’t required to justify their vote. 
  • The Board’s administrative staff announces the vote at the clemency hearing. Their recommendation is forwarded to the Governor, who has the final say. 

Favorable recommendations are rare. Since 1977, just four Oklahoma death row prisoners have had their sentences commuted following a clemency hearing, according to the Death Penalty Information Center. 

Has Oklahoma changed its execution protocol at all?

The Department of Corrections has implemented new procedures it says will ensure the correct drug combination is used and death row prisoners aren’t subject to unnecessary suffering. 

The updated protocols include: 

  • A special operations team will verify the identity, concentration and amount of each execution chemical and distinctly label each dose. 
  • The corrections director will notify the death row prisoner of the lethal drug combination to be used on them at least 10 days before their execution date. 
  • Five minutes after the first sedating drug is administered, an anonymous medical professional will check to see if the prisoner is unconscious. If so, the final two drugs are administered. 
  • Ten minutes after the first drug has been administered, the corrections director can decide whether to stop, re-start or continue the execution based on the state of the prisoner. 

The state’s three-drug lethal injection calls for midazolam, vecuronium bromide and potassium chloride, the same mixture used prior to the execution moratorium. 

How could a ruling in the federal lawsuit affect the death penalty in Oklahoma? 

If the federal court rules that Oklahoma’s lethal injection protocol is unconstitutional, state officials would need to find an alternative. 

Oklahoma’s constitution permits executions by nitrogen gas and firing squad, in that order, in the event the state’s lethal injection protocol has been ruled unconstitutional or drug supplies are unavailable. However, attempts to implement either method would likely face legal challenges from death row prisoners and their legal counsel. 

Do Oklahomans support the death penalty? 

A majority do, but many also have doubts. 

In 2016, 66.3% of voters enacted State Question 776, which affirmed the state’s authority to perform executions and designate new execution methods. A 2016 SoonerPoll survey found that three-quarters of likely voters supported the death penalty in theory, but 53% would support abolishing the death penalty in favor of life without the possibility of parole and restitution to the victim’s family. 

Recent polling shows many Oklahomans are sympathetic to claims of factual innocence made by death row prisoners. A June 2021 poll conducted by Amber Integrated, an Oklahoma City public relations and political consulting firm, found that six in 10 Oklahomans support commuting Jones’ death sentence. 

Keaton Ross is a Report for America corps member who covers prison conditions and criminal justice issues for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss

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