Oklahoma

Oklahoma

Inventor of Midazolam Opposes Its Use in Executions

As U.S. pharmaceutical companies have removed medicines from the market to prevent states from obtaining them for executions, states have turned to alternatives, like the sedative midazolam. Dr. Armin Walser, who was part of the team that invented the drug in the 1970s, is dismayed at that development. “I didn’t make it for the purpose” of executing prisoners, Dr. Walser told The New York Times. “I am not a friend of the death penalty or execution.” For most of midazolam's history, the medicine was used only for its intended purpose: as a sedative in procedures like colonoscopies and cardiac catheterizations. Since 2009, however, six states have used it to carry out a total of 20 executions. Midazolam's use in executions has been marked by controversy because, critics argue, it is a sedative, not an anesthetic, and does not adequately anesthetize the condemned prisoner before painful execution drugs are administered. Megan McCracken, a specialist in lethal injection litigation with the University of California-Berkeley law school said, “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.” Midazolam was used in the botched executions of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, Joseph Wood in Arizona, and Ronald Smith in Alabama. In January 2017, a federal magistrate judge barred Ohio from using midazolam in executions, saying that its use presented a substantial and objectively intolerable risk of serious pain and suffering during executions. As a result of litigation challenging Arizona's lethal injection protocol in the wake of Wood's execution, that state agreed that it would never again use midazolam. The manufacturer of the drug has said it “did not supply midazolam for death penalty use and would not knowingly provide any of our medicines for this purpose," leaving states to turn to alternative suppliers if they want to continue using midazolam in executions. Walser said that, when he learned about midazolam's use in executions, "I didn't feel good about it."

Pro-Death Penalty Referenda Prevail in 3 States; Kansas Retains 4 Justices Attacked for Death Penalty Decisions

Voters in three states approved pro-death penalty ballot questions Tuesday, while in a fourth, voters turned back an effort to oust four Justices who had been criticized for granting defendants relief in capital cases. Amid widespread agreement that California's death penalty system is broken, the state's voters rejected Proposition 62, which would have abolished the state's death penalty and replaced it with life without possibility of parole plus restitution, and narrowly approved a competing ballot initiative, Proposition 66, which seeks to limit state court death penalty appeals and expedite executions. With 99% of precincts reporting, Prop 62 trailed 54%-46%, with 3,964,862 Yes votes and 4,643,413 No votes. Prop 66 prevailed 51%-49%, with 4,203,801 Yes votes and 4,051,749 No votes. Earlier in the day, Nebraska voters, in a closely watched referendum, overturned the state legislature's repeal of the state's capital punishment statute and reinstated the death penalty. With 99% percent of precincts reporting, Nebraskans voted in favor of the death penalty by a margin of 61%-39%, casting 443,506 "repeal" votes on Referendum 426 to overturn the legislature's abolition of the death penalty, against 280,587 "retain" votes to keep the legislative repeal in place. Wednesday morning, Governor Pete Ricketts pledged to take action to carry out executions in Nebraska, while long-time death penalty opponent, State Senator Ernie Chambers, vowed to introduce a new bill in the next legislative session to abolish capital punishment. In Oklahoma, voters by a nearly 2-1 margin approved State Question 776, which constitutionalizes the state legislature's power to adopt any execution method not prohibited by the U.S. Constitution and prevents Oklahoma's state courts from declaring the death penalty cruel and unusual punishment. With 100% of precincts reporting, Question 776 prevailed 66%-34%, with 941,336 Yes votes and 477,057 No votes. The death penalty was also a central focus in judicial retention elections in Kansas, where pro-death penalty groups targeted four justices of the state supreme court and spent more than $1 million in an attempt to oust them for their votes overturning several Kansas death sentences. Voters retained all four Justices. Chief Justice Lawton Nuss, speaking on behalf of the challenged justices, said "The supreme court’s ability to make decisions based on the rule of law—and the people’s constitution—has been preserved." Ryan Wright of Kansans for Fair Courts, which opposed the efforts to remove the Justices, added “Kansans have sent a very clear message . . . : hands off our court.” 

Editorial Boards, Oklahoma Conference of Churches Oppose Death Penalty Ballot Measure

The editorial boards of Oklahoma's two major newspapers and the leadership of the Oklahoma Conference of Churches are all urging voters to vote no on State Question 776, which would enshrine the death penalty in the Oklahoma constitution and remove from state courts the power to declare the death penalty cruel and unusual punishment. The Oklahoman called SQ 776 "unnecesary," saying it, "should be rejected by Oklahoma voters on Nov. 8." The Tulsa World also encouraged a no vote on 776, saying, "It’s intended effect is to allow supporters of the death penalty to feel as if they have done something, even if they haven’t. But there’s a problem with such symbolic votes. The measure has no intended consequences, but the nature of unintended consequences is that they are unintended, and sometimes unpredictable." Both editorials emphasize that the measure adds to the state constitution powers that the Legislature already has, including designating a new method of execution if the current method is ruled unconstitutional. The Oklahoma Conference of Churches joined the two editorial boards in discouraging passage of the measure. In an op-ed for the Tulsa World, the group's executive director, Rev. Dr. William Tabbernee (pictured), drew on a recent SoonerPoll survey that found, "a majority of Oklahomans (52.5 percent) favor abolishing the death penalty, if replaced by life without parole. Only 27 percent of Oklahoma’s population remains strongly in favor of capital punishment." He describes the recent problems with Oklahoma's administration of the death penalty, including the use of the wrong drug in the execution of Charles Warner. In response to those problems, the Oklahoma Death Penalty Review Commission was formed to examine the capital punishment system, and is expected to release a report early in 2017. "This measure pre-empts the work of the commission and, if passed, would permit execution by virtually any means if lethal injection drugs are unavailable," Tabbernee said. "Rather than enshrining the death penalty in the state’s Constitution now, we should let the commission finish its work and offer its recommendations on the way to proceed in the future." In an opinion piece in the Guthrie News Leader, Republican Logan County Commissioner Marven Goodman called the ballot question "a huge step in the wrong direction," noting that Oklahoma, while executing 112 people, has had 10 death-row exonerees. Goodman said, "as a conservative, I wouldn't trust the government to regulate shoe laces, let alone administer a program that kills its citizens, but that's exactly what we have."

U.S. Supreme Court Reverses Oklahoma Case Over Improper Victim-Impact Testimony

The U.S. Supreme Court has reversed a decision of the Oklahoma Court of Criminal Appeals that affirmed the death sentence imposed on Shaun Michael Bosse. In a unanimous per curiam decision issued October 11, the Court held that Oklahoma prosecutors had improperly presented testimony from three members of the victims' families asking the jury to sentence Bosse to death. The Court had ruled in 1987 in Booth v. Maryland that the use of victim-impact testimony in determining whether a capital defendant would be sentenced to death violated the 8th Amendment. Four years later, after a personnel change on the Court, it retreated from part of that decision, holding in Payne v. Tennessee that the presentation of testimony relating to the effect of the victim's death on his or her loved ones was constitutionally permissible. The Oklahoma Court of Criminal Appeals then ruled that Payne had implicitly overruled Booth in its entirety, permitting Oklahoma prosecutors to present highly emotional pleas from victims' family members asking juries to impose the death penalty. Oklahoma was the only jurisdiction in the country to interpret Payne in that manner, and Bosse's petition for review argued that "Oklahoma stands alone" and that its "outlier" practice was unconstitutional. The Supreme Court summarily reversed the Oklahoma court, writing that it has never overruled the portion of Booth that prohibits victims' family testimony offering "opinions about the crime, the defendant, and the appro­priate punishment." The Court further declared that its decision in Booth "remain[s] binding prec­edent until we see fit to reconsider [it]." While the Bosse decision prevents Oklahoma prosecutors from presenting this type of testimony in the future, its impact on the numerous other cases in which Oklahoma prosecutors presented this testimony is less clear. The Court remanded Bosse's case to the Oklahoma Court of Criminal Appeals, which may consider whether the improper testimony constituted harmless error. Similar harmless error review may be required in other Oklahoma cases.

Death Row Exonerees Speak Out on State Death Penalty Ballot Questions

As voters get set to cast ballots on death penalty questions in California, Nebraska, and Oklahoma, U.S. death row exonerees from across the country have been scouring those states in an effort to inform the public of the risks of wrongful executions. On September 19, 17 of the nation's 156 death-row exonerees appeared at a California press conference advocating approval of Proposition 62, which would replace the death penalty with life without parole plus restitution, and defeat of Proposition 66, which seeks to place limits on the capital appeals process. Many, including California exoneree Shujaa Graham (pictured), Florida exoneree Juan Melendez, Arizona exonerees Ray Krone and Debra Milke, and Louisiana exoneree Damon Thibodeaux urged a no vote on Prop. 66, arguing that they would have been executed without the chance to prove their innocence if a measure like it had been effect when they were sentenced to death. A few days earlier, Illinois exoneree Randy Steidl and Ohio exoneree Kwame Ajamu spoke to the Oklahoma Republican Liberty Caucus, a group described by its chairman, Logan County Commissioner Marven Goodman, as "disenfranchised conservatives" who, as a result of their distrust of government regulation are questioning the death penalty. Steidl and Ajamu told the caucus about their wrongful capital convictions and raised concerns about the effects of limitations on judicial review under Oklahoma ballot question 776, which would bar Oklahoma courts from ruling that the imposition of the death penalty constituted cruel or unusual punishment or "contravene[d] any provision of the Oklahoma Constitution." Steidl, who was wrongfully convicted in Illinois in 1987 and exonerated in 2004, stressed the importance of appellate review in securing his exoneration: "Without the judicial review I finally got, I’d be dead today or at least be languishing in prison," he said. "I really believe that Oklahoma’s track record so far is not very pretty when you’ve got 10 people that’s been exonerated." And in Nebraska, Maryland's Kirk Bloodsworth, the first former death row prisoner to be exonerated by DNA, taped an ad on behalf of Retain A Just Nebraska, the advocacy committee opposing a voter referendum that could overturn the state legislature's repeal of Nebraska's death penalty. In the ad, Bloodsworth says: "You could free a man from prison, but you cannot free him from the grave. You can not un-execute someone. ... If it can happen to an honorably discharged marine with no criminal record or criminal history, it could happen to anybody in America.”

Poll: Majority of Oklahomans Support Replacing Death Penalty With Life Without Parole Plus Restitution

A new survey conducted by SoonerPoll has found that while three-quarters of likely Oklahoma voters say they support the death penalty in theory, a majority (53%) support abolishing capital punishment and replacing it with a sentence of life without parole, plus restitution to victims' families. Among every political affiliation, more supported the plan to replace the death penalty than favored keeping it, with a majority of Democrats (58%) and independents (57%) supporting abolition and a 48%-41% plurality of Republicans favoring replacing the death penalty. A similar poll from November 2015, shortly after the failed execution of Richard Glossip, found 52% support for replacing the death penalty with life without parole. The poll results reflect a pattern of softening support for capital punishment among voters in death penalty states. Recent polls in a number of such states show respondents expressing support for the death penalty generally, but favoring alternatives to capital punishment when offered a choice of punishments. A Florida poll earlier this year reported that 62% of respondents preferred some form of life in prison for those convicted of murder. In 2015, 54% of Pennsylvanians preferred life in prison. A recently-released Kentucky poll reported that 58% of respondents preferred lengthy prison terms over death sentences, with 72% supporting a moratorium on executions.

Fair Punishment Project Issues Report on Deadliest Prosecutors

A new report by Harvard Law School's Fair Punishment Project has found that a small number of overzealous prosecutors with high rates of misconduct have a hugely disproportionate impact on the death penalty in the United States. The report, "America's Top Five Deadliest Prosecutors: How Overzealous Personalities Drive the Death Penalty," shows that, by themselves, these prosecutors are responsible for more than 440 death sentences, the equivalent of 15% of the entire U.S. death row population today. Exploring what it calls "the problem of personality-driven capital sentencing," the report details the effects of Joe Freeman Britt of Robeson County, North Carolina; Robert Macy of Oklahoma County, Oklahoma; Donald Myers of the 11th Judicial District of South Carolina; Lynne Abraham of Philadelphia, Pennsylvania; and Johnny Holmes of Harris County, Texas. Britt, Macy, and Myers personally prosecuted a combined 131 cases that resulted in death sentences, while Abraham and Holmes oversaw offices that the report says imposed 108 and 201 death sentences, respectively. They also disproportionately sent innocent people to death row, prosecuting 1 out of 20 of the nation's death-row exonerees. The report found similar patterns involving these prosecutors, including high rates of prosecutorial misconduct, statements and actions that revealed a win-at-all-costs mentality, and a sharp decrease in death sentences once they and their proteges left office. Britt, Macy, and Myers were found to have committed misconduct in one-third to 46% of the death penalty cases they prosecuted. Prosecutors in Abraham's and Holmes' offices were found to have engaged in misconduct, including racially-biased jury selection and failures to disclose favorable evidence. Of the five prosecutors profiled in the report, only Myers—who is not seeking re-election—is still in office. After the other four prosecutors left office, the number of death sentences has declined significantly. Robeson County has imposed two death sentences in the last 10 years, Oklahoma County and Philadelphia County have each imposed three in six years, and Harris County dropped from an average of 12 death sentences a year during Holmes' last decade as prosecutor to one a year since 2008.

As Legitimate Market for Execution Drugs Dries Up, States' Secret Execution Practices Become Increasingly Questionable

Pfizer's recent announcement that it was tightening controls against what it calls the misuse of its medicines in executions highlights an on-going struggle between states desperate for execution drugs and a medical community that believes its involvement in the lethal injection process violates its medical and corporate missions and the ethical standards of the pharmaceutical and health professions. As Pfizer and nearly two dozen other pharmaceutical companies have ended open market access to drugs potentially used in executions, states have responded by increasingly shrouding the execution process in secrecy. The states "are mainly concerned about losing their providers of lethal-injection drugs should the companies’ names become public," says Linc Caplan in a recent article in The New Yorker. Otherwise, "companies that do not want their products associated with executions will know that their drugs are being used." He reports that since the Supreme Court upheld Kentucky's execution protocol in 2008, 20 states have responded to drug shortages by abandoning protocols that had been substantially similar to Kentucky’s, making "unfettered substitutions" to their protocols in "desperate attempts to adhere to their execution schedules.” Caplan reports that States "have also been increasingly misleading in their efforts to obtain drugs for executions." He cites documents showing that one Ohio official urged state drug purchasers to identify themselves as from the Department of Mental Health and warned they should "not mention anything about corrections in the phone call or what we use the drug for." Louisiana similarly obtained execution drugs from a local hospital, which mistakenly assumed they were needed for medical use. Last week, an Oklahoma grand jury report described that state's secrecy practices as producing a "paranoia" that "clouded [prison officials'] judgment and caused administrators to blatantly violate their own policies." An article by Chris McDaniel in BuzzFeed after the release of that report documented that the same secrecy and lack of oversight criticized by the Oklahoma grand jury is common in other states, and has contributed to execution problems in Missouri, Georgia, and Ohio. Arizona and Missouri paid executioners in cash, and Missouri's mismanagement of that fund likely violated federal income tax law. Missouri's secrecy, McDaniels writes, also "allowed it to purchase execution drugs from a pharmacy in Tulsa, Oklahoma, that was not licensed in Missouri and had questionable pharmaceutical practices." Other states, like Texas and Arizona "have used the secrecy to purchase drugs illegally," he reports. 

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