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Finality Over Fairness: How Execution Sprees Compromise Representation

By Alexa Johnson-Gomez Project Intern & Emily Olson-Gault, Director

In the summer of 2022, the Oklahoma Court of Criminal Appeals cleared the way for the state to execute twenty-five prisoners over the next two years. These executions would begin in August 2022 and result in about one execution a month through 2024. Among several concerns about these execution “sprees,” which have been attempted in recent years by other states as well as the federal government, is the way that the timing prevents capital defense counsel from being able to fulfill their duties to zealously advocate for their clients up until execution.

In ordinary capital cases, no matter how diligent counsel has been for years, attorneys must frequently engage in a flurry of litigation when an execution date has been set, both because certain claims are often not viewed as ripe until there is a pending execution warrant and because there is a tendency for new evidence to emerge when a case begins to receive media attention again after the date is set. Representation of a capital prisoner, already one of the most complicated areas of legal practice, is even “more difficult and time-consuming when the defendant is facing execution.” Among the responsibilities of counsel are addressing issues of competency to be executed, challenging unconstitutional execution protocols, preparing a petition for executive clemency and potentially conducting a clemency hearing, speaking with witnesses who may choose to come forward once a date is set, and filing any new challenges to the death sentence that may be available based on this late-arriving information.

Defense teams with a client under an active death warrant often work around the clock in the days leading up to their client’s scheduled execution, spending every moment advocating to protect their client’s basic constitutional rights. Execution sprees double down on this difficulty and all but ensure even the best lawyers will have to cut corners in order to litigate on their client’s behalf. A process that is overwhelming for lawyers handling a single case under warrant can quickly become impossible when a defender office suddenly has numerous clients all facing death within a short amount of time, each case requiring this intensely focused representation. Where such execution sprees have been attempted in other jurisdictions, there have been serious ramifications for fairness and due process for the prisoners as well as for the ethical responsibilities of appointed counsel.

For example, in April 2017, Arkansas Governor Asa Hutchinson announced plans to execute eight men in a span of eleven days. No state had ever conducted eight executions in an eleven-day period in the modern death penalty era, and only twice before in U.S. history had a state conducted eight executions in a single calendar month. Critics argued that the state was pursuing this  race to execute because Arkansas’ supply of Midazolam (one of three lethal injection drugs) was set to expire in April 2017. One legal office—the Capital Habeas Unit for the Federal Public Defender for the Eastern District of Arkansas—represented the majority of the eight men. Numerous lawsuits were raised regarding the execution protocol, including by the manufacturers of the Midazolam who claimed that the state had obtained the drugs from the company under false pretenses. While counsel managed this complex series of cases, they identified another issue – one of the men scheduled for execution had received a recommendation for clemency from the Parole Board, but by statute the governor was not allowed to act on the recommendation for 30 days—which would be after the prisoner was already put to death. A challenge was needed to prevent the prisoners’ execution from taking place before clemency could be granted, but this required researching, drafting, and filing a new cause of action in federal court, and ultimately conducting a day-long hearing on the claims. The same day that this hearing took place, a hearing was scheduled for one of the lethal injection challenges. Capital defense and legal ethics expert Lawrence J. Fox submitted an affidavit arguing that counsel was being asked to violate multiple different rules of professional conduct, including those concerning competence, diligence, and conflicts of interest. Ultimately the execution of the prisoner with a clemency recommendation was halted as a result of the litigation, and he was later granted clemency and resentenced to life. Four other prisoners, however, were executed, including prisoners who had serious unresolved claims of incompetence to be executed and actual innocence.

In another striking example, the federal government began its own execution spree in 2020 after an informal moratorium of seventeen years. For the first time, the U.S. federal government conducted more executions in a single year than all state executions combined. As most states paused executions due to the COVID-19 pandemic, the federal government executed ten people following a series of administrative decisions that “produced controversy and chaos.” The condensed timeline artificially limited federal courts’ ability to review any execution-related litigation and forced counsel to investigate and litigate under unsafe conditions. Although several federal district and circuit courts ruled that the prisoners had important constitutional claims that needed to be heard before their executions could take place, these decisions were all summarily reversed by the U.S. Supreme Court, which currently disfavors any claims that might halt an execution once a date is set, even if the claim predates the State's setting of the execution date.  

When Oklahoma decided to pursue a similar path, capital defenders were again faced with this fraught situation. In the first weeks of 2023, however, and after carrying out the first of its planned 11 executions, the Oklahoma Attorney General put a halt to the schedule, saying that “a reassessment of the current execution schedule is necessary to maintain confidence in the system” and “that the current pace of executions is unsustainable in the long run, as it is unduly burdening the DOC and its personnel.”