In April 2014, Clayton Lockett writhed in visible pain as the state of Oklahoma executed him with an injection of three drugs. The execution, a “bloody mess,” the prison warden said at the time, took 43 minutes. The state postponed the execution of Charles Warner, also scheduled for that night, only to kill him less than nine months later. His death came more quickly, but not without pain: “My body is on fire,” he said after being injected with the drugs.
Richard Glossip was supposed to be the next on Oklahoma’s death row to die, in September 2015, but then-Gov. Mary Fallin (R) halted the execution at the last minute because the corrections department had the wrong combination of drugs. A subsequently released autopsy report revealed that executioners had, in fact, used the wrong drug to put Warner to death.
The series of high-profile screw-ups prompted lawsuits and investigations into the state’s lethal injection protocol, resulting in a yearslong moratorium on executions in the state that has the third-highest body count.
But now Oklahoma is trying to kill again. The state is asking the U.S. Supreme Court to vacate a legal stay so it can use the same combination of drugs that were used in Lockett’s botched execution on John Marion Grant, who suffered extreme neglect and abuse as a child. If the execution goes forward, he will be killed with a lethal injection of midazolam, vecuronium bromide and potassium chloride as punishment for the 1998 killing of Gay Carter, a woman who worked at the prison where he was incarcerated at the time.
The seven individuals the state is trying to execute — John Marion Grant, Julius Jones, Bigler Stouffer, Wade Lay, Donald Grant, Gilbert Postelle and James Coddington — do not represent the worst of the worst. Rather, their cases are marked by issues that are prevalent on death row: severe untreated mental illness, abusive childhoods, racism in the judicial system, extreme poverty, ineffective assistance of counsel and claims of innocence.
There is ongoing litigation over whether Oklahoma’s method of execution violates the Eighth Amendment’s protection against cruel and unusual punishment. Last year, Mike Hunter, then the state attorney general, promised not to schedule executions while litigation was ongoing. But in August, U.S. District Judge Stephen Friot dismissed six of the plaintiffs, citing a grim legal technicality: during litigation, the six men declined to specify their preferred alternative method of execution, mostly citing ethical and religious objections to facilitating their own deaths.
Had they done so, it’s unlikely any of them would be facing execution dates. Oklahoma Attorney General John O’Connor, who replaced Hunter in July, quickly sought executions for those six, plus a seventh man who was never a party to the lawsuit. The six plaintiffs have since been reinstated to the litigation, but the state is pushing forward with the executions anyway.
On Monday, Judge Friot declined a request to halt several executions until after the conclusion of the litigation. On Wednesday, an appellate court granted a stay for John Marion Grant and Jones, the two men whose execution dates are most imminent. The state appealed the matter to the U.S. Supreme Court, which has not yet made a decision.
“Injustice does not even describe what would result if these plaintiffs are executed and the federal court later decides that the current Oklahoma protocol is unconstitutional,” Dale Baich, a federal public defender representing the plaintiffs in the lethal injection litigation, told HuffPost. “The executions could not be undone.”
If John Marion Grant’s execution goes forward on Thursday, his death may be used as evidence for the lawsuit, which is headed for a trial. But it’s possible that any pain Grant would suffer would be invisible to witnesses. Days before his execution date, lawyers representing the plaintiffs asked the court to order the omission of the paralytic drug from Grant’s injection in order to preserve evidence of “the physical manifestation of pain and suffering” during the killing. Friot, the same judge who dismissed Grant from the litigation for failing to specify how he wanted to die, denied the request.
“Injustice does not even describe what would result if these plaintiffs are executed and the federal court later decides that the current Oklahoma protocol is unconstitutional.”
– Dale Baich, federal public defender
Lockett, whose 2014 botched execution is now seared into public consciousness, likely knew that his death could be excruciatingly painful. In a bid to save his life, his lawyers had argued as much in court.
“After all the litigation we did, there was no way to assure him that this wasn’t going to be a very painful, torturous experience,” Dean Sanderford, a federal defender who represented Lockett, said in an interview. Just a few months before Lockett’s death, Oklahoma executed Michael Lee Wilson, whose final words were, “I feel my whole body burning.”
The morning of his execution, Lockett made a noose out of his sheets, made several cuts on his arms and swallowed a handful of pills he had been saving. Maybe he was afraid of the way the state planned to kill him. Maybe he wanted to go on his terms. Either way, he survived long enough to be killed.
When guards came to get him, Lockett refused to go, so they used a Taser on him and dragged him from his cell, The Atlantic reported. He was given a medical examination, X-rays and a shower, all so he could be executed a few hours later. No matter what, it was important to keep up the false appearances of a medical operation.
In reality, there is nothing medical about killing someone who wants to live. The American Medical Association’s code of ethics states that as members of a profession dedicated to preserving life, physicians “must not” take part in executions — although some have participated, including at Lockett’s execution.
The various drugs used in executions are selected largely based on what is available rather than what is proved to kill with minimal pain. As pharmaceutical companies become increasingly resistant to having their products used in executions, the details about the source and quality of the drugs are often kept secret, as are the names of those who participate in the killings. Payments are sometimes made in cash to avoid a paper trail. Although proponents of the death penalty claim the process is humane, there is evidence to the contrary. It would be difficult to definitively prove either way, as it would be unethical to run a scientific study to test the question.
Those who are executed often don’t get an autopsy, but many of the autopsies that have been done on those killed by lethal injection show signs of flash pulmonary edema — a condition that can induce excruciating feelings of drowning or suffocating, similar to waterboarding. Because lethal injections often include a paralytic, the individual can be in torturous pain but unable to express it.
In Lockett’s case, an improperly placed intravenous line allowed the drug to seep into his tissue instead of running through his veins. The needle used was more than an inch too short. “Well, we’ll just have to make it work,” the doctor said at the time.
In June 2014, shortly after Lockett’s execution, a group of people on death row filed a lawsuit challenging the legality of Oklahoma’s lethal injection protocol. In November, they asked Friot to grant a preliminary injunction and halt the upcoming executions of four of the plaintiffs — Glossip, Warner, Benjamin Cole and John Marion Grant — until the litigation was complete.
Friot denied the request for a preliminary injunction, citing the high burden of proving a likelihood of future success in litigation. He also claimed the men had failed to demonstrate they would “suffer any non-speculative irreparable harm” without a preliminary injunction — a puzzling way to describe individuals facing death. The case made its way to the U.S. Supreme Court, where, in a 5-4 decision, justices allowed the executions to go forward. Warner, the man who cried out that his body was on fire, was executed later that day.
The next week, the Supreme Court agreed to hear the challenge to Oklahoma’s lethal injection protocol. Although it takes five justices to block an execution from going forward, it only takes four to agree to hear a case. Oklahoma’s then-attorney general, Scott Pruitt, asked the Supreme Court to stay the executions of the other three men with execution dates, and the court agreed — a decision that came two weeks too late for Warner.
In June 2015, the Supreme Court issued another 5-4 decision, allowing the three executions to go forward. In a lengthy dissent, Justice Stephen Breyer described how he had come to believe that the death penalty “likely constitutes a legally prohibited ‘cruel and unusual punishmen
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