« "Limiting the Pardon Power" | Main | USSC releases "new" guideline manual as Acting Chair describes recent Commission activities »

October 28, 2021

By 5-3 order, SCOTUS vacates stays of Oklahoma executions entered by Tenth Circuit ... and one execution carried out

As set forth in this short order, the US Supreme Court this afternoon has vacated stays of execution for two death row defendants, one of whom is scheduled to be executed today.  Justices Breyer, Sotomayor, and Kagan indicated they would deny Oklahoma's application to vacate the stays that had been entered by the Tenth Circuit yesterday. Justice Gorsuch took no part in matter, presumably because the case came from his old circuit.  This Hill article from yesterday provides the basics on the litigation:

The U.S. Court of Appeals for the Tenth Circuit granted a temporary motion for stay of execution for two Oklahoma death row inmates on Wednesday, just a day before one of the inmates was scheduled to die by lethal injection.

The appeals court stayed the executions of Julius Jones and John Grant on the basis that they met two criteria required for an execution to be stayed. Prisoners must show that the execution method chosen by the state — in this case a three-drug lethal injection — presents “a substantial risk of severe pain" and they must also show that the risk of severe pain is substantial when compared to other available alternatives.

Jones and Grant were part of a federal lawsuit seeking to challenge Oklahoma's three-drug lethal injection. However, Judge Stephen Friot denied a motion for a preliminary injunction that they and three other inmates sought, clearing the way for their executions in the next six months....

The appeals court wrote that though Jones and Grant did not choose an alternative method of execution, it does not mean they did not identify alternatives to lethal injection. The court also wrote that there was no law that requires a prisoner to choose their own method of execution.  The court wrote that the if the inmates are executed they "risk being unable to present what may be a viable Eighth Amendment claim." 

UPDATE: As reported in this AP piece, "Oklahoma ended a six-year moratorium on executions Thursday, administering the death penalty on a man who convulsed and vomited before dying, his sentence for the 1998 slaying of a prison cafeteria worker." Here is more:

John Marion Grant, 60, who was strapped to a gurney inside the execution chamber, began convulsing and vomiting after the first drug, the sedative midazolam, was administered. Several minutes later, two members of the execution team wiped the vomit from his face and neck.

Before the curtain was raised to allow witnesses to see into the execution chamber, Grant could be heard yelling, “Let’s go! Let’s go! Let’s go!” He delivered a stream of profanities before the lethal injection started. He was declared unconscious about 15 minutes after the first of three drugs was administered and declared dead about six minutes after that, at 4:21 p.m.

Grant was the first inmate to be executed since a series of flawed lethal injections in 2014 and 2015. He was serving a 130-year prison sentence for several armed robberies when witnesses say he dragged prison cafeteria worker Gay Carter into a mop closet and stabbed her 16 times with a homemade shank. He was sentenced to die in 1999.

October 28, 2021 at 03:25 PM | Permalink


In the opposition to vacate the stay of execution, it was noted that "Respondents refused on religious and/or moral grounds to make such a selection, and were dismissed from the lawsuit."

(The link is available on the SCOTUS docket page.)

Their refusal to check a box on a form (shades of contraceptive mandate cases?) was one of the two arguments for overturning the stay. The other was that their basic claim that the execution protocol is illegitimate will fail.

As Chris Geidner noted: "On a 5-3 vote, the Supreme Court — unlike in other cases — jumped in to reverse a lower court’s procedural decision, this time in a case that means a man almost certainly will be killed by the state of Oklahoma tonight."

The 10th Circuit by a 2-1 vote granted a stay. Unlike the justices here [at least so far], each side explained why they voted that way.

The Supreme Court should let the lower courts do their job. If not, they should explain why they are stepping in.

Posted by: Joe | Oct 28, 2021 3:43:15 PM

Reports of the execution are a bit gruesome.

Kassie McClung [Oklahoma reporter] on Twitter ...

"He began convulsing and vomited. Medical team wiped his face. He was still breathing. Convulsed and vomited more. Execution started shortly after 4 p.m

He started convulsing after the drugs were administered. He convulsed about two dozen times after midazolam was administered.

It's hard to recount these details so quickly, as witnesses are still talking, and frankly, the details are disturbing. I'll tweet as they come. Sean Murphy, who has witnessed 14 executions, said he has never seen anyone vomit. He compared the convulsions to Clayton Lockett.

I should note, Murphy is a reporter with the Associated Press."

[Lockett's execution was botched. Other preliminary reports of this execution are of a similar nature.]

Oklahoma waited a while to execute again & it didn't go that well. There were two other executions recently, without this sort of thing being reported. Without more, I'm led to conclude Oklahoma is handling things particularly badly.

Posted by: Joe | Oct 28, 2021 7:18:44 PM

(I didn't see it or the update was added as I was writing my comment.)

Posted by: Joe | Oct 28, 2021 7:19:49 PM

Good riddance. I wish it hadn't taken so long. How gruesome was the murder?

Posted by: William C Jockusch | Oct 29, 2021 8:04:24 AM

That's a way to go.

No matter how gruesome a person's crime, there are requirements in place to follow.

A core purpose of the Eighth Amendment is to prevent gruesome punishments for people we hate.

But, I know the general comments in these cases. Someone else will make some sort of comment about the Catholics on the Court being pro-life. (sneer sneer) I think that too is a bit simplistic.

Posted by: Joe | Oct 29, 2021 11:00:24 AM

The eighth amendment bans "cruel and unusual punishment". Assuming for the sake of argument that his body did convulse, do we even know that he was conscious at the time? If not, it's hard to see how the punishment ought to be described as unusually painful, let alone cruel.

Furthermore, the "unusual" portion of the amendment is actually an argument for more executions of murderers. If it is done frequently enough, then it's not unusual, is it?

Posted by: William C Jockusch | Nov 7, 2021 7:43:20 AM

As Prof. Lain and others have argued, the lack of clarity regarding the consciousness question and so forth is part of the problem with the current use of lethal injections. She argues a firing squad would be most reliable, but we are too squeamish about the optics.

The term "unusual" has various dimensions. Part of its reach is "usual" legal processes, as in authorized by law. A process that violates due process would be "unusual" even if it happened regularly.

It is a somewhat interesting question to consider the issue of very common punishments that are still cruel or otherwise problematic. Crucifixions, e.g., were quite common in Ancient Rome. Still cruel.

Cruelty can be a problem as a matter of due process of law -- the typical "violates of the conscience" rule.

But, bottom line is that we don't have a whole lot of executions. The net result is a sort of lottery system, where a few unlucky people are executed & in the process there is a lot of arbitrariness.

Posted by: Joe | Nov 11, 2021 1:13:04 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB