Oklahoma

Oklahoma

Review Commission Report: Oklahoma Death Penalty Cases Cost Triple That Of Non-Capital Cases

An independent study of the costs of seeking and imposing the death penalty in Oklahoma, prepared for the Oklahoma Death Penalty Review Commission, has concluded that seeking the death penalty in Oklahoma "incurs significantly more time, effort, and costs on average, as compared to when the death penalty is not sought in first degree murder cases." The report—prepared by Seattle University criminal justice professors Peter A. Collins and Matthew J. Hickman and law professor Robert C. Boruchowitz, with research support by Alexa D. O’Brien—found that, on average, Oklahoma capital cases cost 3.2 times more than non-capital cases. Reviewing 15 state studies of death penalty costs conducted between 2000 and 2016, the study found that, across the country, seeking the death penalty imposes an average of approximately $700,000 more in case-level costs than not seeking death. The researchers wrote that "all of these studies have found ... that seeking and imposing the death penalty is more expensive than not seeking it." The Oklahoma study reviewed 184 first-degree murder cases from Oklahoma and Tulsa counties in the years 2004-2010 and analyzed costs incurred at the pre-trial, trial, sentencing, and post-sentencing (appeals and incarceration) stages. Capital prosecutions, it found, cost the counties more than 1½ times the amount of incarceration costs than did non-capital trials because capital defendants spent an average of 324 more days in jail prior to and during death penalty trials. Prosecutors spent triple in pre-trial and trial costs on death penalty proceedings, while defense teams spent nearly 10 times more. Oklahoma capital appeal proceedings cost between five and six times more than non-capital appeals of first-degree murder convictions. Despite Oklahoma's ranking in the bottom 19 states in justice expenditures and what Oklahoma County District Attorney David Prater called “horrific issues with underfunding" of Oklahoma's indigent defense system, the study "conservatively estimated" that an Oklahoma capital case cost $110,000 more on average than a non-capital case. The researchers said their results were "consistent with all previous research on death penalty costs, which have found that in comparing similar cases, seeking and imposing the death penalty is more expensive than not seeking it." They concluded, "It is a simple fact that seeking the death penalty is more expensive. There is not one credible study, to our knowledge, that presents evidence to the contrary."

Bipartisan Oklahoma Report Recommends Moratorium on Executions Pending 'Significant Reforms'

After spending more than a year studying Oklahoma's capital punishment practices, the Oklahoma Death Penalty Review Commission has unanimously recommended that the state extend its current moratorium on executions "until significant reforms are accomplished." The bipartisan commission issued its report on April 25, 2017, reaching what it characterized as "disturbing" findings that "led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death." The report contains recommendations for more than 40 reforms to virtually all areas of Oklahoma's death penalty system. Oklahoma has not carried out an execution since January 15, 2015, when the state used an unauthorized drug to execute Charles Warner. On October 16, 2015, lawyers for the state agreed to a federal court order barring executions until at least five months after a new execution protocol is in place. Warner's execution also prompted a grand jury investigation, which, like the Commission report, was highly critical of Oklahoma's capital punishment system. The Commission, whose eleven members included former Oklahoma Governor Brad Henry, Judge Reta M. Stubhar of the Oklahoma Court of Criminal Appeals, attorneys, law professors, mental health professionals, and others, examined the death penalty process from arrest to execution. The report states, "Commission members agreed that, at a minimum, those who are sentenced to death should receive this sentence only after a fair and impartial process that ensures they deserve the ultimate penalty of death. ... Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions. These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma." In particular, the Commission raised concerns about wrongful convictions, focusing 10 recommendations on the issue of "innocence protection." Other recommendations dealt with forensic practices, training of prosecutors, defense attorneys, and judges, determinations of death eligibility, the clemency process, and the execution protocol.

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.

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