Saying the state’s highest court exceeded its authority in granting stays to two inmates, Gov. Mary Fallin issued a seven-day stay of execution Tuesday for one of the inmates.
Fallin’s office said it now plans to execute both inmates — Clayton Lockett and Charles Warner — on the same day, April 29.
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Both executions were ordered stayed indefinitely by the state Supreme Court on Monday while it considers appeals of a lower court’s ruling that the state’s execution-secrecy law is unconstitutional.
“While I have great respect for the honorable men and women of the Supreme Court, this attempted stay of execution is outside the constitutional authority of that body,” Fallin states in the executive order. “I cannot give effect to the Order by that Honorable Court and remain consistent with my oath of office to uphold the Constitution.”
Fallin said she is invoking her constitutional power to grant a stay to Lockett, who was to be executed at 6 p.m. Tuesday, until April 29. Her order does not mention Warner’s execution, which was also scheduled for April 29 until the Supreme Court issued its stay.
Fallin’s order directs the state attorney general “to seek specific guidance from the Oklahoma Court of Criminal Appeals” regarding Lockett’s execution.
Under the state’s Constitution, the Court of Criminal Appeals is the state’s highest court for criminal cases. The Supreme Court generally has jurisdiction over civil matters, including whether state laws are constitutional.
While the Supreme Court has never issued an execution stay in the past, the court noted in its opinion Monday that it has “sole power” to determine which court has jurisdiction to issue a stay.
Fallin’s spokesman, Alex Weintz, told the Tulsa World the state plans to execute both Lockett and Warner on April 29. He said details such as the time of each execution have not been determined.
The Oklahoma State Penitentiary at McAlester has a single execution chamber, where victims’ relatives, law enforcement officers, media witnesses and witnesses chosen by the inmate view the process through a window.
Madeline Cohen, an assistant federal public defender who has represented Warner, said she believes that Fallin “does not have the authority to override the Supreme Court, which has … exercised its jurisdiction properly in entering a stay.”
Lockett was convicted of the 1999 shooting death of Stephanie Neiman of Perry during a botched home-invasion robbery. Warner was convicted of the rape and murder of his roommate’s 11-month-old daughter in Oklahoma County in 1997.
The inmates are not challenging their convictions but are challenging a state law that allows Oklahoma to withhold information about drugs used in executions. That law was enacted in 2011 to shield drug suppliers who did not want to be publicly linked to the death penalty.
As states have scrambled to respond to shortages of execution drugs, they have come up with new combinations that some experts say can lead to pain and suffering during the process. The Eighth Amendment to the U.S. Constitution prohibits “cruel and unusual punishments,” leaving it up to the courts to determine what punishments are cruel or unusual.
Oklahoma inmate Michael Lee Wilson’s last words as he was executed Jan. 9 were: “I feel my whole body burning.”
Ohio Inmate Dennis McGuire gasped for air and took more than 20 minutes to die when he was executed with a new drug combination Jan. 15.
The state of Oklahoma has told attorneys for Lockett and Walker it plans to use a new, untested combination of drugs in the executions but has cited state law in refusing to name the supplier and other details.
“We hope this case will lead to full transparency in Oklahoma’s lethal injection practices and that no more executions will take place until basic questions about those practices are answered,” Cohen said.
Justices in both state appeals courts have been deeply divided over the matter.
The Supreme Court voted 5-4 Monday to issue the stays, saying it was forced to do so because the Oklahoma Court of Criminal Appeals had declined to issue a stay. That appeals court had voted 3-2 to deny the stay request.
In a dissent to the Supreme Court’s majority opinion granting stays in the case, Justice Steven Taylor stated: “We have never been here before and we have no jurisdiction to be here now.”
Attorney General Scott Pruitt’s request for a rehearing by the Supreme Court on Tuesday was denied.
In a written statement, Pruitt spokesman Aaron Cooper said: “The unprecedented and extraordinary actions of the Oklahoma Supreme Court (OSC) have put the State of Oklahoma in the midst of a constitutional crisis.”
Richard Dieter, executive director of the Death Penalty Information Center, said it would be “exceedingly rare” for a state to execute an inmate despite an existing stay order.
“I don’t think the governor has the power to overturn the courts. … Generally in our society, the courts interpret the law and the Constitution.”
Dieter noted that the issue in dispute, Oklahoma’s execution secrecy law, involves both civil and criminal matters. He said the state “is teetering on a real constitutional crisis.”
“The federal courts might have to intervene, too, because there are basic constitutional rights.”
Dieter said executing more than one inmate during a single day is less rare.
“Arkansas had three executions in one day when Bill Clinton was governor, and they used the electric chair. Texas has had more than one execution in a day. What is questionable here is whether these can be carried out until the Oklahoma Supreme Court gives its signal that the issue can be settled.”
Jerry Massie, a spokesman for the Oklahoma Department of Corrections, said the prison could hold two executions in one day.
“Other states have done it. ... We would have to have some time separation,” Massie said.
Conflicting orders
On Monday, the state Supreme Court ordered an indefinite stay of execution for two Oklahoma inmates after the Court of Criminal Appeals said it lacked jurisdiction to issue the stays. Gov. Mary Fallin issued an executive order Tuesday for a seven-day stay for one inmate, which conflicts with the Supreme Court’s order.
Here are excerpts from the conflicting orders and key portions of state law cited.
Oklahoma Court of Criminal Appeals: “The Court of Criminal Appeals has exclusive appellate jurisdiction in criminal cases and may exercise such other and further jurisdiction as may be conferred by statute. ... This court may grant a stay of execution only when 1. there is an action pending in this court; 2. the action challenges the death row inmate’s conviction or death sentence and 3. the death row inmate makes the requisite showings of likely success and irreparable harm. ... While the Oklahoma Supreme Court has the authority to deem an issue civil and so within its jurisdiction, it does not have the power to supersede a statute and manufacture jurisdiction in this Court for Appellants’ stay request by merely transferring it here. Therefore, Appellants’ application for stays of execution is denied.”
— Order denying stays of execution issued Friday
Oklahoma Supreme Court: “This case presents a very narrow question: whether these appellants should have some access to an appellate tribunal for consideration of a stay of execution based upon the consideration of grave first impression constitutional issues regarding the manner in which their lives will be taken. … We exercised our constitutional authority to determine the appropriate tribunal for resolution of the stay issue under the Oklahoma Constitution, Article 7, section 4, vesting this Court with the sole power to determine whether the jurisdiction of the stay issue was within this Court or the Court of Criminal Appeals. … As uncomfortable as this makes us, we refuse to violate our oaths of office and to leave the appellants with no access to the courts, their constitutionally guaranteed measure.”
— Opinion granting stays of execution issued Monday
Gov. Mary Fallin: “While I have great respect for the honorable men and women of the Supreme Court, this attempted stay is outside the constitutional authority of that body. … I will hereby exercise my constitutional authority pursuant to Article 6 Section 10 of the Oklahoma Constitution … (and) grant a stay of the execution of Clayton Derrell Lockett of seven days from the date of the scheduled execution.”
— Executive order granting stay of execution issued Tuesday
