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.