Rights of the Condemned: What Oklahoma Death Row Prisoners Can and Can’t Do In Their Final Hours

As Oklahoma prepares to carry out seven executions over a five-month stretch, the U.S. Supreme Court will soon hear oral arguments in a case that could expand civil rights for the condemned. 

Convicted of murdering a convenience store worker and sentenced to death in 2008, Texas prisoner John Henry Ramirez was scheduled to be executed on Sept. 8. In the weeks leading up to the execution, Ramirez requested that his pastor be allowed to lay hands on him during the administration of lethal injection drugs. 

Texas prison officials rejected Ramirez’s petition, citing safety concerns. This prompted Ramirez’s attorney to file a religious liberty lawsuit claiming his First Amendment rights were being violated, which advanced to the Supreme Court. Ramirez’s execution date was postponed indefinitely after the Court agreed to hear oral arguments sometime in October or November.  

Currently, the U.S. Constitution gives death penalty prisoners broad protection from cruel and unusual punishment. From there, states are free to implement their own procedural rules, including final clemency appeals, what prisoners can eat for their last meal and who may witness the execution.

State corrections department policy on capital punishment dictates everything from how the drugs are administered to who the condemned can talk to in their final days and hours. 

From the last appeal to final words, here’s a look at how state policy determines an Oklahoma death row prisoner’s last hours: 

The Final Appeal 

Three weeks before their execution date, death row prisoners can appear before the State Pardon and Parole Board for a clemency hearing. 

The prisoner’s legal counsel, a prosecutorial representative and a victim’s advocate address Board members during the proceeding. The five-member panel then votes on whether to recommend clemency to the governor. 

During an interim study on death penalty procedures held last October, Pardon and Parole Board Executive Director Tom Bates said it’s unlikely board members would recommend clemency in most capital cases. 

Oklahoma is one of eight states where the governor must receive a recommendation from an independent parole board before granting clemency. 

It’s rare but not unprecedented for the Pardon and Parole Board to recommend clemency and the governor to act on that request. For example, former Gov. Brad Henry granted clemency to three death row prisoners, modifying their sentences to life in prison, during his eight-year term. 

Visitors and Phone Calls 

Death row prisoners’ phone call privileges are revoked at 9 p.m. on the evening before their execution. An exception is made for legal counsel and any other person approved by the corrections director. Their in-person visitation privileges also expire at that time. 

The prisoner may meet with their attorney for up to two hours on the day of the execution. Otherwise, the prisoner is placed in a holding cell until their scheduled execution time. 

Execution Method

Unlike a handful of states, including Tennessee. and Virginia, Oklahoma’s death row prisoners don’t have a say in how they’re killed. 

Execution by nitrogen gas and firing squad is only authorized if the state is unable to secure a reliable supply of drugs or its lethal injection protocol has been deemed unconstitutional. 

A ruling on the constitutionality of Oklahoma’s lethal injection drug mix could come soon. A group of Oklahoma death row prisoners is challenging the state’s use of midazolam in executions in a federal lawsuit, claiming that the sedative’s use constitutes cruel and unusual punishment. 

Last month U.S. District Judge Stephen Friot ruled that the lawsuit could proceed to a trial, likely sometime in early 2022. However, Friot rejected the claims of six death prisoners who didn’t provide an alternative execution method, clearing the way for the state to set some execution dates. A seventh death row prisoner, Bigler Stouffer, did not join the lawsuit. 

Last Meal 

The prisoner’s last meal is served between 5 and 7 p.m. the night before their scheduled execution. Corrections department protocol states that a “reasonable effort shall be made to accommodate the request, which shall not exceed $25.”

The last meal is a widely adopted, though not universal, practice among states that carry out executions. In 2011, Texas prison officials opted to end the tradition after convicted murderer Lawrence Russell Brewer refused to eat a meal that included a plate of fajitas, two chicken fried steaks and a meat lover’s pizza. 

Witnesses 

The prisoner can request that a maximum of five relatives and friends attend to view their execution. The witnesses, subject to corrections department approval, must be at least 18 years old and pass a criminal background check. The prisoner may also ask that two pastors attend the execution. 

Witnesses aren’t allowed inside the execution chamber. In 2010, convicted murder Donald Wackerly asked prison officials to let his Buddhist spiritual advisor stand beside him during the administration of the execution drugs. A federal judge dismissed the request after prison officials agreed to let the spiritual guide perform rituals on Wackerly’s dead body. 

Up to five media witnesses are also authorized to view the execution, with priority given to one reporter from the market where the crime was committed and The Associated Press. 

Last Words 

Death row prisoners may make a final statement that is “reasonable in length and does not contain vulgar language or intentionally offense statements directed at the witnesses”. Prison officials may turn the microphone off if the prisoner violates these conditions. 

How We Got Here 

Following a series of botched executions, former Gov. Mary Fallin agreed to halt all executions in October 2015 until a reliable supply of approved drugs became available. The state explored nitrogen gas as a lethal injection alternative but encountered supply issues. 

In February 2020, former Attorney General Mike Hunter announced that the state had secured a reliable supply of lethal injection drugs and was prepared to resume executions. However, Hunter agreed to not schedule any executions until a federal lawsuit challenging the state’s lethal injection protocol settled. 

On Aug. 11, U.S. District Judge Stephen Friot ruled that the lawsuit challenging the state’s use of midazolam in executions could proceed to a trial, likely sometime in early 2022. However, Friot in his ruling rejected the claims of six death prisoners who did not provide an alternative execution method, clearing the way for the state to set execution dates. A seventh death row prisoner, Bigler Stouffer, never joined the lawsuit. 

At the request of Attorney General John O’Connor, the state Court of Criminal Appeals on Sept. 20 set execution dates for the seven death row prisoners. Among them is Julius Jones, who faces a Nov. 18 date if Gov. Kevin Stitt does not intervene. Stitt has not yet acted on the state Pardon and Parole Board’s Sept. 13 request that Jones’ sentence be commuted to life in prison with the possibility of parole.

Keaton Ross is a Report for America corps member who covers prison conditions and criminal justice issues for Oklahoma Watch. Contact him at (405) 831-9753 or Kross@Oklahomawatch.org. Follow him on Twitter at @_KeatonRoss.

Oklahoma Watch, at oklahomawatch.org, is a nonprofit, nonpartisan news organization that covers public-policy issues facing the state.