Oklahoma Is Urged To Keep Its Execution Ban Until System Is Fixed

Oklahoma should continue its moratorium on executions until it can reform its death penalty system to ensure that no innocent person is put to death, according to the recommendation of the Oklahoma Death Penalty Review Commission. 

The commission outlined its recommendation Tuesday as it released a nearly 300-page report. 

(View the full report below.)

“Our primary recommendation, based on our in-depth study and work, is that the state of Oklahoma should extend the current moratorium on executions until significant reforms are accomplished,” former Oklahoma Gov. Brad Henry, a Democrat who co-chaired the group, said at a press conference Tuesday. 

Henry said that, while some members favor outright abolition of the death penalty and others staunchly support it, the commission’s recommendation to continue the moratorium was unanimous ― and “wasn’t difficult to reach.”

“We were all disturbed by the volume and seriousness of the flaws in Oklahoma’s capital punishment system,” Henry said. 

Executions in Oklahoma have been suspended for 17 months, since a last-minute discovery of an injection drug mixup halted the execution of Richard Glossip. The state had already executed two other prisoners since 2014 with injections that had gone wrong. A damning, multi-county grand jury investigation found that the Oklahoma Department of Corrections used the wrong drug in one and was prepared to use that same incorrect drug on Glossip.

The 11-member bipartisan commission behind Tuesday’s report included representatives of academia, the legal field and all three branches of government, as well as families of murder victims and families of those who have been wrongfully convicted.

Over 10 full-day meetings plus other interviews, they concluded that Oklahoma’s capital punishment system had “systemic problems” in key areas of forensics, innocence protections, the execution process and the roles of juries, prosecutors, defense and the judiciary. 

The commission issued more than 40 recommendations on how Oklahoma could approach reforms, including broadening the clemency process, reconfiguring the appeals process and raising the threshold for which defendants are eligible for the death penalty. The commission also said that bolstering resources for public defenders would improve Oklahoma’s system by ensuring fairer trials and fewer appeals down the road. 

The prospect of executing an innocent person appeared to weigh heavily on the commission, with Henry repeatedly addressing the need to prevent it.

“You may get innocent people on death row. And we know we have,” Henry said, noting that, since 1973, Oklahoma alone has exonerated 10 people who were on death row. 

“I believe it’s very likely that, at some point, Oklahoma has executed an innocent person,” he said, quickly adding that he couldn’t be certain.  

Lethal injection drugs were another aspect of Oklahoma’s system that the commission said needed better options. Henry said they believed the best protocol “is the one-drug barbiturate rather than the three-drug cocktail we have here.” 

States like Texas use the one-drug method of injecting pentobarbital, but it has become increasingly hard to find. Most active death penalty states use the three-drug method, and it’s the first drug, a sedative, that has caused significant issues. The preferred drug is largely unavailable after drugmakers pulled out of the market. It its place, states have used midazolam, which critics say doesn’t reliably render an inmate unconscious before the paralyzing and ultimately lethal drugs are injected. 

Now, midazolam is becoming hard to find as well; its scarcity is what triggered Arkansas’ current effort to execute eight prisoners in 11 days before its supply of the drug expires. Arkansas has executed three of the eight men in the last week and has a lethal injection scheduled for Thursday. Four of the men have been issued stays.