Oklahoma carries out its first execution of 2024

Update: The state killed Michael Smith on Thursday. Also: The Fifth Circuit hears a second argument over Texas's S.B. 4 criminal immigration law.

Oklahoma plans to execute Michael Smith on Thursday. It would be the state’s first execution of 2024.

This was not the plan when Republican Oklahoma Gov. Kevin Stitt backed an execution spree soon after executions resumed in the state in 2021.

The state hadn’t held any executions after January 2015 until October 2021 due to a series of botched executions that led to an execution pause and review of the state’s processes. Once the state resumed executions, though, Stitt’s appointed attorney general, Republican John O’Connor, got court orders to carry out 25 executions in 29 months — a killing spree. The state encountered issues right away, like one of the people not being in Oklahoma’s custody, but the executions did begin.

Then Gentner Drummond won election to the attorney general’s office. Replacing O’Connor, Drummond, also a Republican, has nonetheless been far more cautious about all of this killing — while still supporting the death penalty generally and specific executions in the state.

As attorney general, Drummond has slowed the pace of executions in the state and — in a rare move — has strongly opposed the execution of Richard Glossip. Instead of more than a dozen executions having taken place since August 2022, as planned, there have been seven — and only three of them since Drummond was able to play a role. (There have technically been four executions since he took office, but the first was fully prepared before he took office and was carried out on his fourth day in office.)

Drummond supports the execution of Smith, though, for the 2002 murders of Janet Moore and Sharath Pulluru, having issued a news release that he was “pleased” when the Oklahoma Pardon and Parole Board denied Smith clemency. “Justice will finally be served for their tragic loss,” Drummond said in the statement.

Smith’s lawyers filed a longshot request for a stay of execution at the U.S. Supreme Court on Wednesday based on an allegation that a person who provided corroborating evidence for Smith’s confession has since recanted her testimony. Later Wednesday, Drummond’s office filed its opposition to that request.

[Update, 10:40 a.m. ET April 4: The Supreme Court denied Smith‘s request for a stay of execution, as well as an associated certiorari petition. There were no noted dissents. Justice Neil Gorsuch, who previously was a judge on the U.S. Court of Appeals for the Tenth Circuit, recused himself, likely due to his former membership on that court, where federal appeals in Oklahoma death penalty litigation are heard.]

The Supreme Court has not granted any stays of execution over the past year, aside from Glossip’s unusual case.

If Smith’s execution goes forward on Thursday, it will be the fourth in the country this year.

[Update, 12:15 p.m. ET April 4: Oklahoma has killed Michael Smith, per a statement from Drummond’s office and media reports. His time of death was reported as 10:20 a.m. CT.]

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S.B. 4’s day in court (again)

As Law Dork previewed on Tuesday, the U.S. Court of Appeals for the Fifth Circuit held arguments on Wednesday morning in Texas’s appeal of a preliminary injunction blocking enforcement of the state’s criminal immigration enforcement law.

Texas Solicitor General Aaron Nielson was on the defensive — an unusual position for a conservative at the Fifth Circuit, to be sure, but this case arrived on appeal on Wednesday in an unusual posture, with the same three-judge panel already having heard and denied the state’s request for a stay of the injunction during the appeal.

Nielson nodded toward that reality at the beginning of his argument, noting how much had happened in the case since the state filed their appeal. Of S.B. 4 itself, which creates Texas crimes relating to illegal entry and sets forth removal rules, Nielson said that Texas has tried to develop a law that “goes up to the edge” of U.S. Supreme Court precedent of federal law — “but no further.”

Then, in a stark acknowledgement, Nielson said, “Maybe Texas went too far.”

It was a strange argument, given that Texas’s initial argument in the case — and one Nielson reiterated in his rebuttal on Wednesday — is that Texas’s law “mirrors” federal law.

So, does the Texas law “go[] up to the edge” of what the Supreme Court blocked in a 2012 case over Arizona’s immigration law, or does it mirror federal law? Those arguments seem at odds.

As with the oral arguments on the state’s request for a stay pending appeals, almost all of the questions for Nielson came from Chief Judge Priscilla Richman — the key vote on the panel and one of two votes, along with Judge Irma Carrillo Ramirez, against the stay. Almost all of the questions for the Justice Department’s lawyer, Daniel Tenny, came from Judge Andy Oldham, who issued an extensive dissent to the stay decision.

Richman is a George W. Bush appointee; Oldham, a Trump appointee; and Ramirez, a Biden appointee. As at the stay arguments, Ramirez did not appear to ask any questions.

Also like the stay arguments, Nielson spent most of his time seeking to convince Richman that S.B. 4 doesn’t do what it appears to do. Treading softly, though, Nielson was left saying that, though Texas “appreciate[s] the court’s work” on the stay opinion, he believed the majority reached the “wrong conclusion” based on an “inaccurate premise.”

This led into a rehashing of the stay arguments about what S.B. 4 means, with Nielson claiming that Texas wouldn’t be deporting anybody under the law and, instead, would merely be taking people convicted under the new criminal law to a port of entry and leaving them with U.S. officials.

This shift appeared to confuse Richman, who asked at one point what the statute accomplished if that were the case, as well as Tenny.

When Tenny did begin his arguments, the unusual nature of all of this was apparent yet again, with a strong opening questioning “counsel’s effort to rewrite S.B. 4 from the podium.”

Tenny then went into a two-part argument, first noting that nothing Nielson said about the removal provision would change the preemption problems with the underlying the criminal provision of S.B. 4, all of which were discussed by Richman in her opinion denying the stay request. As such, Tenny said, the appeals court would affirm the district court’s injunction.

As to the substantive argument, Tenny pointed to a declaration submitted by Texas in the case to challenge Nielson’s claim about the effects of the law. In the declaration, Tenny said, a Texas official stated that, under the S.B. 4 removal provision, Texas officials would take someone to be removed to a port of entry and “observe the alien going to the Mexican side.”

For his part, Oldham continued, as in his stay dissent, with an argument that the Supreme Court, in that 2012 Arizona case, made clear that each part of the law needs to be looked at independently and that, as Oldham put it, questions about how the law would be implemented should counsel against a pre-enforcement injunction.

It is a disingenuous argument, and there’s a reason why Oldham doesn’t ever go into detail about the provision in which the court made those comments. The problem is that Oldham is, in effect, mixing one aspect of the federal government’s argument in the Arizona case with all of Texas’s law — all of which goes further than Arizona’s law had.

In the Arizona case, the Supreme Court affirmed the injunctions against much of the law, setting aside the injunction of one part of the law highlighted by Oldham. In the part Oldham is discussing, officers were required to check the immigration status of people detained under certain circumstances. Among other aspects of the provision that the Supreme Court considered relevant, federal immigration status controlled that Arizona determination. Injunction against provisions in the Arizona law relating to registration, criminal law, and arrest, on the other hand, were upheld as being preempted by federal law.

Texas’s only other real argument on Wednesday was not a defense of S.B. 4 at all; it was an argument that the federal government can’t sue Texas because there’s no specific federal statute authorizing this sort of litigation. DOJ, in response, pointed to a line of case allowing lawsuits seeking injunctions against state officials for violations of federal law.

To that, Nielson argued that allowing the Justice Department to bring that sort of a lawsuit “can’t be correct” because, in other instances, there are federal statutes allowing the federal government to bring suit in specific instances. Here, though, DOJ can’t point to any statute, Nielson said.

In response, Tenny said, “It’s their position that would be extraordinary,” noting that there is no case in which a court denied the federal government’s ability to bring a case like this in court, “Not one. From any court.”

At the end of the arguments, it did not appear that anything had happened to change the 2-1 vote against Texas’s stay request, but the court has no timeline for a decision.