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September 21, 2021
Oklahoma top court sets executions dates for seven condemned men over the next six months
In this post last month I asked, "Might Oklahoma really try to move forward with seven executions over the next six months?" That post was prompted by the Oklahoma Attorney General's request to the state's Court of Criminal Appeals to set execution dates for seven death row inmates, including in the high-profile case of Julius Jones. Now, as reported in this local article, all these execution date have been set:
High-profile death row inmate Julius Jones has been scheduled for execution Nov. 18. The Oklahoma Court of Criminal Appeals on Monday set execution dates for Jones and six other inmates convicted of murder. The court set the date for Jones even though the Oklahoma Pardon and Parole Board recommended Gov. Kevin Stitt commute his death sentence.
The board voted 3-1 Sept. 13 to recommend his sentence be commuted to life in prison. If the governor agrees, Jones immediately would be eligible for parole. Stitt could choose to commute the sentence to life in prison without the possibility of parole. He also could deny commutation.
Oklahoma's new attorney general, John O'Connor, asked the court to schedule the execution dates. O'Connor made the request in August after a federal judge ruled six of the inmates could no longer participate in a legal challenge to the state's execution procedures.... Still in the legal challenge are 26 other death row imates. Their lawsuit in Oklahoma City federal court focuses mainly on the use of a sedative, midazolam, in lethal injections. Trial is set for Feb. 28.
Jones, 41, is facing execution for the 1999 fatal shooting of an Edmond insurance executive during a carjacking. Jurors chose the death penalty as punishment at a 2002 trial. The victim, Paul Howell, was gunned down in his parents' driveway in Edmond after a back-to-school shopping trip with his daughters. Stolen was his 1997 Suburban. Jones claims that he is innocent, that the real killer framed him and that his trial was unfair....
Oklahoma has not carried out an execution since January 2015. Scheduled for execution first is John Marion Grant, 60, an armed robber who was sentenced to death for fatally stabbing a prison kitchen worker in 1998. His execution was set for Oct. 28.
Next is Jones. Third is Bigler Jobe Stouffer, 78, who was sentenced to death for the 1985 fatal shooting of a Putnam City elementary school teacher. His execution was set for Dec. 9....
Fourth is Wade Greely Lay, 60, who was sentenced to death for killing a security guard during a botched bank robbery in 2004. His execution was set for Jan. 6.
Fifth is Donald A. Grant, 45, who was sentenced to death for killing two workers at the LaQuinta Inn in Del City during a 2001 robbery. His execution was set for Jan. 27.
Sixth is Gilbert Ray Postelle, 35, who was convicted of murdering four people on Memorial Day 2005 outside a trailer in Del City. He was sentenced to death for two of the murders and to life in prison without the possibility of parole for the other two. His execution was set for Feb. 17.
Seventh is James Allen Coddington, 49, who was sentenced to death for killing a Choctaw man in 1997 during a cocaine binge. His execution was set for March 10.
O'Connor initally had asked for earlier dates. He revised his request when the appeals court did not act. He told the court he was doing so so that inmates will get a required notice and to allow the parole board time to conduct clemency hearings. In the order, the four judges on the Court of Criminal Appeals found that the setting of execution dates is now appropriate and required by law. They acknowledged in a footnote that they are aware of Jones' commutation request. They wrote "this Court's duty to set a date certain is dictated" by law because there is currently no stay in effect.
Given that there have only been four state executions nationwide since the start of the pandemic more than 18 months ago, I would be quite surprised if Oklahoma actually completes so many executions in the next few months. But, as we recently saw with the federal system in 2020, sometimes an attorney general very motivated to restart the machinery of death can get death chambers humming pretty quickly.
Prior related post:
September 21, 2021 at 09:38 AM | Permalink
Comments
" But, as we recently saw with the federal system in 2020, sometimes an attorney general very motivated to restart the machinery of death can get death chambers humming pretty quickly."
With the assist of a packed Court.
"Very motivated" includes "violating basic due process."
Tomato/oe.
Posted by: Joe | Sep 21, 2021 9:49:41 AM
SCOTUS seemed pretty okay with modern execution protocols in 2008 when they decided Baze v. Rees in 2008 and Glossip v. Gross in 2015. Was the Court "packed" in 2008 and 2015, Joe? Notably, the US AGs at those times and since up until until William Barr did not seem eager to move forward with any federal executions. But AG Barr seemed to really make the difference at the federal level.
Posted by: Doug B. | Sep 21, 2021 11:54:57 AM
The multiple problems with the specific federal executions have been discussed by various people, including in a piece published at SCOTUSBlog a few weeks back. It was not just about the issues covered in previous lawsuits. Troll troll troll.
Posted by: Joe | Sep 21, 2021 12:02:19 PM
Can you link to the piece you reference, Joe? Seems hard to believe that there was not a way for the feds to do an execution for nearly two decades if there had been the will. Dozens of states found their way to completing hundreds of executions during this period.
My point is not that courts do not matter, but rather that the executive branch's desire to invest energy and political capital on these matters often determines whether and when a jurisdiction moves forward with executions after traditional appeals run their course.
Posted by: Doug B. | Sep 21, 2021 1:20:55 PM
https://www.scotusblog.com/2021/09/abortion-the-death-penalty-and-the-shadow-docket/ is, I believe, the referenced SCOTUSBlog article, which references this more academic piece: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3891784
Agreed that the whims of the executive drive the process (which reminds me of another article: https://www.stanfordlawreview.org/print/article/the-american-execution-queue/). But I have to agree w/Joe re SCOTUS's willingness to go out of its way to make sure Trump and Barr got their way.
But, again, point taken re the importance of executive branch priorities. Because of executive prerogative, unless Biden commutes the fed death row, he runs the risk of enabling another run of executions by his successor(/predecessor?).
Posted by: John | Sep 21, 2021 1:58:05 PM
Your point is bland and doesn't specifically address my comment. The first comment did less.
The single article link is appreciated, but many people wrote about the issue. I don't rest on a single article there.
For whatever reason, the executions were addressed by Barr, and normal due process would at the very least prevented the last few. Those were done at the very end.
If handled differently, there was time for executions to have occurred relatively properly. As far as that can be.
But, they went another way. And, the packed Court via the shadow docket (the two cases cited not that and Glossip itself given full treatment thanks to Kennedy).
And, that was done and aided by a packed Court.
All of this can be debated, but the brief comment, by someone I expected knows the basics here, did not. It was so weak, that seemed generous to suggest there was some troll. If it was just ignoring stuff to make an independent point, fine.
Posted by: Joe | Sep 21, 2021 4:16:22 PM
A bit more.
>SCOTUS seemed pretty okay with modern execution protocols in 2008 when they decided Baze v. Rees in 2008 and Glossip v. Gross in 2015.
I noted the two cases here did not cover the gambit of the issues in the federal execution cases. So, citing these two doesn't really address my due process concerns. Baze was 7-2. The liberals all strongly dissented in these cases.
In Glossip, SCOTUS didn't really seem "pretty okay." They strongly split. The problems with executions there led the state itself to have an extended moratorium to examine the question. Glossip himself is still alive last I checked.
>Was the Court "packed" in 2008 and 2015, Joe?
No. As noted, when Kennedy was there, Glossip received full treatment, four of them wanting to skip over that. Membership mattered here. Either way, it was in my view packed. That hurts the legitimacy of it. It to me is notable. Something might happen even if there is not a legitimacy problem. But, having one makes it worse.
So, again, I'm not really sure what the reply tells me. Some fairly simplistic sentiment that if things were handled differently that the executions still could have happened.
Okay. If anything, that makes things worse in my view. More blatant.
>Notably, the US AGs at those times and since up until until William Barr did not seem eager to move forward with any federal executions. But AG Barr seemed to really make the difference at the federal level."
Yes. I don't dispute Barr "really made the difference" here, since ultimately he was the one who set things in motion. Sessions didn't.
He set things in motion in ways, helped by a packed Court, that violated due process. The packed Court especially factored in when they rushed along executions that otherwise wouldn't have happened before the Biden Administration came in.
And, yes, a moratorium without more does leave open more executions by the next Administration, including ones that violate due process with the help of a packed Court.
Posted by: Joe | Sep 21, 2021 6:38:29 PM
Joe, I am happy you are continuing to engage this issue; I am struggling to understand what you mean by phrases like "packed court" and "violated due process" because you are using them more like political slogans than as explanations of legal issues. If your point is just that the membership of SCOTUS impacts how capital cases get addressed, sure. But the composition of the court changes all the time, and I need to understand what you mean by "packed" given that the usual use of that phrase is to describe proposals to increase SCOTUS membership. Perhaps you view all of Trump's appointments to be illegitimate. Okay, then complain about that, but calling the court "packed" is confusing. Kennedy left the Court in 2018. Is that when you think it got packed? Or was it 2017 with Gorsuch being confirmed? Or 2020 with Barrett? (Notably, Baze and Glossip, upholding lethal injection protocols with Justice Kennedy joining the Glossip majority opinion by Justice Alito, pre-date all these Trump appointments.)
In light of the ruling in Baze, a number of federal AGs could have readily sought to move forward with lethal injections for the dozen or so federal death row murderers who have exhausted all their appeals. But AG Mukasey, AG Holder, AG Lynch, AG Sessions and acting AG Whitaker all decided not to. Then along came AG Barr, and a few months after taking office he set execution dates for late 2019. His efforts were challenged in federal court, and executions delayed, until the Supreme Court upheld his execution plans to allow delayed executions to start going forward in July 2020. Can you explain to me how you think "due process" was violated in this process?
I agree that there was an effort to move forward with long-stalled executions before a new Administration took power and took a different approach to this issue. Is it your view that SCOTUS, on some notion of "due process," should block all executive actions of a lame-duck administration if it thinks a new administration will adopt a different executive policy?
At the end of the day, my point is the seemingly obvious one that the executive branch ultimately controls whether, when and how capital sentences get carried out. Courts can and do have a role to play checking how the executive branch seeks to carry out sentences, and they certainly should prevent violations of due process along the way. But I am still struggling to understand what due process violations you think were committed here. Some Justices dissented from various SCOTUS orders clearing the way for executions, but I do not recall any statement of a clear "due process" violation in even the dissents.
Posted by: Doug B. | Sep 22, 2021 11:11:30 AM
I wouldn't describe what the Supreme Court did as a due process violation.
There were some legal arguments about how to interpret the federal death penalty statute. Most pro-death penalty talking heads thought that the legal arguments lacked substantial merit. Most anti-death penalty talking heads thought that the legal arguments had merit. The Supreme Court decided that none of them was substantial enough to merit a stay. One can disagree with that conclusion, but it is hard to say that the disagreement rises to the level of a due process violation.
This disagreement, of course, is a problem with the shadow docket which asks the court to decide which status quo to preserve while issues are explored in the lower court. But the alternative is either automatic stays whenever a defendant finds a new argument (and there is always a new argument) or requiring defendants to file challenges to the current execution method (or possible execution methods) long before an execution date is set with no stays.
Posted by: tmm | Sep 22, 2021 12:00:28 PM
Disagreement is fine but once we go into "hard to say" territory, it is a lot more difficult. It to me is often better to not say things like that. It is much more debatable that even saying something -- which to me implies there is even a reasonable debate -- is hard.
I don't think the critics -- and concern about process here isn't just "anti-death penalty talking heads" -- were really making some technical Fifth Amendment claim that SCOTUS was violating due process.
At least, I'm not. They did say SCOTUS very well abused the procedure and that to me very well in some sense has due process implications. Also, that the SCOTUS majority was wrong. Being wrong doesn't mean SCOTUS itself "violated due process." But, the defendants' due process in the end was violated all the same.
Finally, I think the last paragraph of tmm's reply is too either/or. It need not, e.g., be "whenever" or something. For instance, if something does not result in a strong divide on the Court (most things), it is different from when there is. The death penalty raises its own special concerns. And, there are arguments that the Supreme Court is not consistent in its shadow docket.
Again, this has been discussed in detail, so don't rely on my passing summary. It was, e.g., discussed by multiple witnesses (each submitting written testimony) to the Presidential Supreme Court Commission.
Posted by: Joe | Sep 22, 2021 12:39:10 PM
I am struggling to understand what you mean by phrases like "packed court" and "violated due process" because you are using them more like political slogans than as explanations of legal issues
The term "violate due process" can be used in different ways.
But, the first comment can quite simply be read using it as an explanation of legal issues.
You can quite easily disagree, but multiple people -- including federal judges up to the Supreme Court -- have explained in detail how the executions were handled in ways that violate due process.
I'm not using it as some "political slogan," full stop. It's fine to do that TOO. But, I very well didn't lead with that. It's unfair to toss that at me. I'll say that at this point. It's also wrong on the merits.
You tossed out Baze and Glossip. I can very well disagree with them and/or that even granting that, that due process still is being violated. Perhaps, Justice Sotomayor also is "more political sloganeering" than stating the law. If so, I dissent.
I said that in my first reply. Barr can very well disagree. But, those two cases do not by their lonesome refute the argument that due process -- in a purely legal sense -- was violated.
More issues that the ones arising in those cases were involved. Since I figured you know such nuances a lot more than me, I found your first reply so weak that is seemed trolling. Since that word has baggage, it's probably better not to say that. But, still, the reply was weak.
====
. But the composition of the court changes all the time, and I need to understand what you mean by "packed" given that the usual use of that phrase is to describe proposals to increase SCOTUS membership. Perhaps you view all of Trump's appointments to be illegitimate. Okay, then complain about that, but calling the court "packed" is confusing
I'm sorry, again, I thought this would not confuse you so much since I'm not using obscure terminology, and someone who pays attention to legal commentary and so forth would reasonably be aware of the current usage of legal related popular terminology.
The "change all the time" bit really is lame to me. Since it confuses you, the basic idea is that one or more [an expanded Supreme Court is sometimes said to be "packed" even if only part of the Court is increased] of the Trump nominees were forced on by the Republicans in a way that changed the basic tenor of the Supreme Court. That is was done in an improper way using proper norms.
I'm using the term here since it is a common usage. It also is to me a form of "packing" which answers in part those who find court expansion a bad idea while at best (often not even) finding what the Republicans (what did not happen "all the time" -- if you are going to accuse me of loose political talk) somewhat unpleasant.
[I conclude we basically disagree as we did when I used the term "stolen seat" or regarding various things about Trump. So be it.]
And, the changes -- as I pointed out more than once -- affected the results here. Along with what to me is a legitimacy issue, this is why I tossed that in. Citing Baze and Glossip (again, itself, contra to your framing, controversial), doesn't answer that.
Is it your view that SCOTUS, on some notion of "due process," should block all executive actions of a lame-duck administration if it thinks a new administration will adopt a different executive policy?
This does not follow from my argument that the specific executions in various respects [even if not all of them] had due process problem.
I basically argued that if the final cases were handled correctly, at least there, the executions wouldn't have happened. The summer executions are a closer call since there was more time.
Again, citing Baze and Glossip didn't refute that. The cases had their own nuances. If the Trump Administration started earlier & SCOTUS handled things differently, the executions might have gone on in a more fair way. But, that didn't happen.
I note the reasonably inferred scare quotes there around due process. I think January executions, days before a new Administration comes along, is generally a bad idea on policy grounds. But, no, I don't think there is some "due process" problem in timing it that way. That is, merely the timing w/o any other issue, is something the Supreme Court should stop. HERE there were other issues.
I cited -- and someone else provided links -- but one discussion of the specific concerns. Or, you can just read the dissents SCOTUS' website or certain lower court opinions.
But, since I'm clearly talking past you, I fear your confusion might continue. Happily, there are various basic issues (such as the importance of executive discretion) for which there is disagreement.
Posted by: Joe | Sep 22, 2021 1:26:18 PM
(the last word should be "agreement")
And, I will now move on.
Posted by: Joe | Sep 22, 2021 1:30:28 PM
The first comment provided a simple statement, but the replies covered a lot of more ground. The results were long comments that tried to cover a lot of ground. At some point, most just stop reading.
Anyway, I want to correct something. I noted Kennedy's vote was key in the very decision to have full argument in Glossip.
The case I was thinking of is Bucklew v. Precythe.
https://www.cnn.com/2019/04/01/politics/supreme-court-death-penalty-bucklew/index.html
Posted by: Joe | Sep 22, 2021 3:30:50 PM
I appreciate the engagement, Joe, though I am not sure I can sort through all the ideas and words in these four comments. And I still am not sure if I understand what you mean when saying that "if the final cases were handled correctly, at least there, the executions wouldn't have happened." Are you saying these cases were not handled LEGALLY correctly or are you just making the POLITICAL point that these case look bad because some may think they were rushed at the end of a term. In all the federal executions, the defendant had committed murders at least 15 to 30 years earlier and all "regular" appeals were long before exhausted. The particulars of lethal injection --- which were addressed generally by SCOTUS in Baze (2008) and Glossip (2015) --- were further litigated for the federal system between June 2019 and through all of 2020. Court access was not denied, and it is unclear what other issues were still to be litigated.
If you think the death penalty is bad policy, that's fine. But some people get elected and in power who think it is really bad policy to have a bunch of death sentences that never get carried out. AG Barr seemed to have that view, and once in power he did what he could, seemingly using legal means, to advance his view of policy. SCOTUS did not stand in his way, and I am not sure they would have even if not "packed" by Prez Trump. After all, SCOTUS let hundreds of executions go forward in the years right after Bill Clinton packed the Court with Justices Breyer and Ginsburg.
Posted by: Doug B. | Sep 22, 2021 4:55:32 PM
McConnell stole Merrick Garland's seat and then refused to abide by his own rule when J. Ginsburg died. For my money, those two moves were when the "packing" occurred.
The controversy around the federal stay litigation was that many Circuit Courts did find that a stay was warranted. Having done so, a court lacking Trump's appointees (or even lacking either Gorsuch or Barrett, assuming a fair political process) probably would have let at least some of the stays remain.
Posted by: John | Sep 22, 2021 5:51:25 PM
I would note that of the thirteen federal executions at the end of the Trump Administration, five were before the death of Justice Ginsburg, two were while the seat was vacant, and six were after Justice Barrett took the bench. Of those thirteen executions, in only three cases did the "liberal" justices all vote for a stay. So if you eliminate Gorsuch, it might have made a difference -- assuming that a Justice Garland would have voted for the stay. Eliminating Justice Barrett would not have made a difference.
Posted by: tmm | Sep 23, 2021 10:29:21 AM
I repeatedly cited legal procedural problems. There is also a political aspect. My comments here is not based on my opposition to the death penalty as policy. My comments were more specific.
As to "it would happen either way," my first comment merely stated I thought due process was violated & that a packed Court helped.
Like someone who thought state sponsored racial segregation is unconstitutional in 1900, those with the power to decide things disagree. The segregation also was worse when certain people were voted in than others. The person still can think it was unconstitutional, especially when additional legal issues are present. "But Plessy" won't refute them.
And, if somehow the Congress in the 1890s "packed" the Court with strong segregationists, that alone wouldn't have mattered by its lonesome.
[I note in partial answer to tmm's latest that the Supreme Court more strongly used its shadow docket with a 6-3 conservative majority. But, it had less restraint even there on questions of the death penalty. Kavanaugh for Kennedy probably shifted things there some.]
Either way, the Court would have upheld it given the votes by other justices chosen fairly. But, AGAIN, that wouldn't mean the Court wasn't packed. That it would matter so little that it would be silly to reference it.
At least, that is my view. If that can't be sorted out, so be it.
Posted by: Joe | Sep 23, 2021 11:39:52 AM
I know no one is really paying attention, but Prof. Vladeck's upcoming testimony regarding the shadow docket has this argument:
"Thus, the court’s novel January 15 ruling in Higgs — a summary reversal on a petition for a writ of certiorari before judgment — seems possible only because there are no longer four Justices who would dissent from such a procedural move."
https://www.justsecurity.org/wp-content/uploads/2021/09/Vladeck-SJC-Testimony-09-29-2021.pdf
Just a fyi ... as with everything else, might be wrong, but it seems both a reasonable and notable statement.
Posted by: Joe | Sep 28, 2021 12:48:18 PM
I always pay attention to you, Joe, and I agree that SCOTUS often does notable and different things in capital cases --- such as actually pay a lot of attention to almost every claim. Many thousands of federal defendants likely do not even get their cert petitions read by a single Justice, whereas every capital murderer gets special treatment (relative to the treatment other defendants get) from the Justices because they were sentenced to death for committing a capital murder.
Posted by: Douglas Berman | Sep 28, 2021 4:48:07 PM
>I always pay attention to you, Joe
That's nice.
Generally, after a week people don't pay attention to old threads. Clearly, you are special.
>I agree that SCOTUS often does notable and different things in capital cases
This might be in response to the professor using the word "novel."
But, just to be clear, the reason I posted the comment is that multiple people here discussed the possible importance of specific personnel on the Court in these cases.
The professor argues Barrett's vote was key in Higgs. If so, realistically, time might have run out. Again, this doesn't mean there is some "due process" right to stop all executions in lame duck periods. It is a statement of what happened here.
>such as actually pay a lot of attention to almost every claim.
I find this statement a tad exaggerated.
>Many thousands of federal defendants likely do not even get their cert petitions read by a single Justice, whereas every capital murderer gets special treatment (relative to the treatment other defendants get) from the Justices because they were sentenced to death for committing a capital murder.
Yes, they get special treatment; from ancient times it was felt that before the government takes a life, special care should be given.
There is a lot of literature on how there still are regularly violations of due process in capital cases. So, what's the point of stating the bland statement, especially after a much more specific quote? Please treat that as rhetorical.
Posted by: Joe | Sep 28, 2021 7:01:47 PM
