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Days ago, a federal appeals court reinstated death row prisoners to a lawsuit challenging the state’s method of execution. The trial for that case isn’t set until February of 2022. Meanwhile, the attorney general has refused to call off executions scheduled before then. Therefore, On October 20 several Oklahoma death row prisoners filed a motion for a preliminary injunction asking the federal district court to block their scheduled executions.

The district court will hold a hearing on the preliminary injunction motion at 9:00 a.m. Central Time on Monday, October 25. Meanwhile, John Grant is scheduled to be executed three days later. It would be Oklahoma’s first execution in six years.

Lawyers representing death row inmates say former Attorney General Mike Hunter made a promise to the court not to schedule any executions until the lawsuit was decided. However, this summer Hunter resigned due to an alleged marital affair. Since then, Oklahoma Governor Kevin Stitt has appointed John O’Connor to the post.

Oklahoma’s attorney general ruled “unqualified” by American Bar Association

Notably, back in 2018 then-President Donald Trump nominated O’Connor to the position of an Oklahoma federal judge. However, the twice-impeached former president eventually withdrew his nomination after a committee of the American Bar Association unanimously ruled that O’Connor was “unqualified.”

Now, it appears O’Connor doesn’t intend to maintain the agreement created by his predecessor.

“The Religious Objector Plaintiffs respectfully request that this Court enforce the agreement of the Attorney General on behalf of Defendants before this Court not to execute Plaintiffs until this case is complete before this Court,” the motion read. “Alternatively, the Religious Objector Plaintiffs respectfully ask that this Court enter a limited stay of the current execution dates or the resetting of dates until final judgment is entered by this Court.”

Federal Public Defender responds

Dale Baich, Assistant Federal Public Defender reiterated the motion’s message, saying “We are asking the federal court to enforce the agreement the state made last year.  It promised that no execution dates would be set until the case before the federal court is complete. As the Tenth Circuit determined last week, the case is not complete.”

“We hope the district court will ensure that no executions proceed until the court has had the opportunity to determine whether Oklahoma’s lethal injection protocol violates the Constitution, a question set for trial in February,” Baich added.

In addition to seeking to hold the attorney general to his promise and ensure they are not executed until the constitutionality of Oklahoma’s protocol is fully decided, the plaintiffs point to other serious unresolved issues in the case. These include whether Supreme Court precedent requires a prisoner to choose the method for his own execution as opposed to simply identifying a feasible and available alternative for comparison to the state’s protocol. 

Plaintiffs argue their religious beliefs are being violated

The plaintiffs say their religious beliefs prohibit them from participating in an execution. They argue that requiring them to select a method for their own executions “demonstrates a hostility towards religion generally,” forcing them to “either violate their sincerely held religious beliefs or face imminent execution.” The plaintiffs explain that each of them signed on to the Third Amended Complaint, which identified four alternative methods of execution. This, they argue, is all that the Supreme Court requires. 

The plaintiffs also argue that executing them before the trial on the constitutionality of the protocol constitutes human experimentation, and express grave concern that the court invited this in its August 11 decision when it said: “whether midazolam does or does not perform as intended when used as specified in the protocol” was an open question, and invited the State to carry out executions before the scheduled trial to “eliminate speculation.”

The Attorney General had sought and obtained execution dates for these prisoners after the federal district court dismissed them from the lawsuit on August 11. But in the same ruling, the district court acknowledged serious factual questions about whether Oklahoma’s execution protocol creates an unconstitutional risk of pain and suffering and scheduled a trial on that issue for the 26 prisoners then remaining as plaintiffs. That trial is scheduled to begin in February 2022.

Oklahoma’s botched death penalty history

Former Gov. Mary Fallin halted all executions in the state after Clayton Lockett’s botched 2014 execution and Charles Warner’s in 2015. In Lockett’s case, the nurse administering the IV didn’t stick the needle directly into the bloodstream. The drug cocktail instead flooded surrounding tissue, resulting in Lockett experiencing extreme agony before dying of a heart attack nearly 45 minutes later. 

In the case of Warner, officials admitted to using the wrong combination of drugs. Both men were African Americans in a state where Black people make up less than 10% of the population. In fact, three of the seven men currently scheduled for execution in Oklahoma are Black. This means that while less than 10% of Oklahoma residents identify as African American, they represent 42% of prisoners currently scheduled for execution.

Oklahoma voters overwhelmingly supported a 2016 ballot measure to enshrine the death penalty in the state constitution. Yet, 10 people have been exonerated from death row in Oklahoma’s history, according to the Death Penalty Information Center.

Now, as Oklahoma resumes executions, the first two scheduled for death are also Black men, John Marion Grant, and Julius Jones, respectively. Grant’s execution is scheduled for October 28, 2021.