Oklahoma argues its desire to kill John Hanson trumps feds' transfer denial decision

Oklahoma has gone to an extremely conservative federal judge in Texas to overrule the feds' decision. DOJ argues that Oklahoma has no case — and, regardless, it shouldn't be in Texas.

Oklahoma’s lawyers were rhetorically jumping up and down in court on Wednesday night, arguing that federal officials are “flagrantly” violating federal law in a “brazen approach to delaying a death sentence” by denying a request to transfer John Hanson from federal custody to Oklahoma’s custody so that the state can kill him next month.

The statute at issue, though, allows transfers only if the head of the Federal Bureau of Prisons (BOP) “finds that the transfer would be in the public interest.” Hanson is serving a life sentence in federal prison, and BOP decided transfer would not be “in the public’s best interest.”

The Wednesday filings came just days after federal officials accused the Oklahoma officials of “blatant forum shopping” in bringing the case last week to one of the most conservative federal judges in the country.

Almost two weeks ago now, I first reported at Law Dork that a dispute was brewing between federal and Oklahoma officials over Oklahoma’s desire to execute John Hanson, a federal prisoner, in December. The lawsuit followed shortly thereafter.

It’s a bad situation all around, from the facts of the underlying pair of murders back in 1999 — all death-penalty cases are truly awful, with families and communities altered forever — to the state’s already-underway plan to execute 25 people over the next two years to the unusual prisoner transfer request at issue to the sketchy way the state has decided to handle this litigation.

Now, however, the immediate question is what that extremely conservative federal judge who currently has the case — US District Judge Reed O’Connor — is going to do with it.

FIRST, THE BACKGROUND: John Hanson is serving a life sentence in federal prison in Louisiana for non-capital crimes. He also has been sentenced to death in Oklahoma for a 1999 murder. He is currently — and has been — in federal custody.

A month after Oklahoma set an execution date for Hanson, the Tulsa County district attorney decided to actually ask the Federal Bureau of Prisons (BOP) to transfer Hanson to Oklahoma’s custody so the state could carry out the execution. The warden of the facility where Hanson is being held informed Tulsa County DA Steve Kunzweiler that the request was denied under federal law as not being “in the public’s best interest.”

Oklahoma Attorney General John O’Connor asked the regional director of BOP and he also was denied, so he and Kunzweiler filed their lawsuit and motion to get Hanson transferred to Oklahoma’s custody so the state can kill him.

In addition to the Dec. 15 execution date, Oklahoma’s lawyers argue that they need Hanson to be transferred immediately so that he can attend a clemency hearing scheduled for Nov. 9. As of now, that hearing is still on the Oklahoma Pardon and Parole Board’s upcoming hearing schedule.

In the lawsuit, Oklahoma is seeeking a writ of habeas corpus or a temporary restraining order or preliminary injunction (all attempts to get the court to order the transfer of Hanson).

They filed their lawsuit in the Wichita Falls Division of the Northern District of Texas. Judge Reed O’Connor — a judge who has ruled against the Affordable Care Act, LGBTQ protections, and mandatory HIV prevention drug (known as PrEP) insurance coverage — is the sole judge in the Wichita Falls Division and is automatically assigned all cases filed in that division.

The basis, according to the Oklahoma, for filing in the Northern District of Texas was that some of the officials involved in the decision — including the BOP regional director — are based in the Northern District (though not in the Wichita Falls Division of the district). They argue that the reason for filing the case in the Wichita Falls Division, where O’Connor sits, was because it is “approximately halfway between” the Oklahoma plaintiffs and the BOP defendants who work in Texas.

THE CASE TRANSFER ARGUMENTS: The Justice Department was not happy with that. As DOJ lawyers put it Sunday night, Oct. 30, in requesting a transfer of two counts of the complaint to a federal court Louisiana:

No Plaintiff resides in the Wichita Falls Division of the Northern District of Texas. No Defendant resides in the Wichita Falls Division. No event or omission giving rise to Plaintiffs’ claims occurred in the Wichita Falls Division. This case should have been filed in the Alexandria Division of the Western District of Louisiana, as that is the only forum where Plaintiffs’ habeas claim may be brought: That is where the federal inmate at issue in this case is incarcerated, and where the inmate’s immediate custodian—the acting warden of the federal prison where he is being held—performs his duties as warden.

In a footnote, DOJ lawyers were even more blunt, asserting that the Oklahoma officials’ “forum-shopping has no justification in the facts alleged in the complaint or any of which Defendants are aware.”

On Wednesday night, Nov. 2, Oklahoma pushed back hard on that front with the legal equivalent of “Who?! Me?!”

In opposing the transfer, they wrote:

At no point during Defendants’ screed about ‘forum-shopping’ do they acknowledge the obvious geographical, logistical, and legal sense that it makes for Oklahoma state officials to sue in the most relevant district (the Northern District of Texas, where the admitted decisionmakers reside) and in the most convenient division in that district for those Oklahoma officials (Wichita Falls).

Repeated throughout their opposition to the transfer motion, noting that the statute mentions “convenience” and that transfer is optional, Oklahoma’s lawyers focused their argument on that idea — that Judge Reed O’Connor’s court is the closest court to Oklahoma within the district where the relevant BOP officials are in Texas, so it made perfect sense for them to file in the guaranteed-to-have-the-case-assigned-to-O’Connor division.

THE PRISONER TRANSFER ARGUMENTS: As to the substance of the state’s case and motion, the federal prisoner transfer statute (18 USC 3623) includes a requirement that the BOP director finds the transfer to be in the “public interest.” BOP officials decided transfer was “not in the public’s best interest.” Oklahoma’s lawyers claimed that’s wrong because, in effect, they really want to execute Hanson in December. They argued it’s “indisputable” that the “public interest” includes “timely enforcement of the death penalty” — which they appear to interpret to mean they should be able to carry out an execution as soon as they are able to do so, regardless of whether the person is in their custody or has another sentence they are serving.

DOJ was as abrupt in its Sunday night opposition on that front as it was in the forum-shopping claims.

On the habeas corpus claim, DOJ argued that such petitions have to be filed in the district where the individual is in custody and that, regardless of that, habeas would be inappropriate on these grounds even if filed in the appropriate federal court in Louisiana.

Oklahoma bases its TRO/injunction request on an ultra vires claim — basically, an argument that the officials took action that is outside of their legal authority.

“At bottom, Plaintiffs disagree with BOP’s decision not to transfer Hanson,” DOJ wrote in response. “But far more than disagreement is needed to succeed on an ultra vires claim.” Regardless, the lawyers continued, the federal prisoner transfer statute was not violated — because BOP made the decision transfer is not in the public interest — so the Oklahoma TRO/injunction request must fail.

In its reply defending its habeas and TRO/injunction request filed on Wednesday night, Oklahoma’s lawyers wrote that DOJ’s “entire response” to the motion “can be boiled down to one argument: 18 U.S.C. § 3623 imposes no constraints at all on the federal executive branch.”

While the state’s lawyers pushed back some on the question of where the habeas petition should be brought, the argument ultimately would require a finding that BOP violated 3623. In other words, the claims merge.

On that front, Oklahoma’s lawyers boldly, if with not much in the way of actual evidence or case law to support their claim, asserted that the federal officials “are clearly violating that law by denying the transfer of Hanson to Oklahoma on the spurious ground that his execution is not in the public interest.”

The state’s lawyers went on to claim, again without evidence, that BOP’s transfer denial of a man serving a federal life sentence amounts to “flagrantly exceeding congressional limitations in a way that allows a convicted murderer to escape a valid death sentence.”

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LET’S STEP BACK: It’s tough to get across just how lawless this whole argument from Oklahoma is, but now that I’ve laid it all out, let me try.

Oklahoma is arguing that its July decision that it wants to carry out an execution in December automatically, because it is a death sentence, should trump the decision of federal officials that transfer is not in the public interest under a federal law that specifically vests the decision in a federal official — and all of this is happening where the person the state is seeking to execute has been sentenced under federal law to life in prison and is in federal custody serving that sentence.

There is no rational scenario in which Oklahoma’s argument should succeed — particularly given that the execution sentence itself has no date assigned to it.

And yet, for now, Judge Reed O’Connor has the case. And no one should place a bet on him siding with the Biden administration — regardless of the facts or the law.