Oklahoma

Oklahoma

50 Years After Historic Confirmation to Supreme Court, Thurgood Marshall's Legacy Continues To Shape Future

Fifty years ago today, Thurgood Marshall (pictured) was confirmed as the nation’s first African-American Supreme Court Justice. Marshall’s legacy is indelibly linked to his historic victory in 1954 as counsel in Brown v. Board of Education, breaking down the barriers of "separate but equal" segregated public education. But he is equally associated with his representation of capital defendants in racially charged cases in the Jim Crow South and his longstanding belief—first articulated in a concurring opinion in the Court's landmark 1972 decision in Furman v. Georgia striking down all existing death-penalty statutes—that "the death penalty is an excessive and unnecessary punishment that violates the Eighth Amendment." A grandson of slaves and a survivor of an attempted lynching by Tennessee police officers, Marshall devoted his life to ensuring that all people, irrespective of race, enjoyed the rights of full citizenship and the equal protection of the law. This inexorably drew him to the issues of lynching and capital punishment. Seven days after the Baltimore native received his law license in October 1933, a 23-year-old intellectually disabled black man, George Armwood, who had been in custody accused of the attempted assault and rape of an elderly white woman, was lynched in nearby Somerset County, Maryland. Marshall was one of ten lawyers to petition the governor seeking anti-lynching legislation and call for an investigation into state police involvement in the lynching. Marshall won his first Supreme Court case in 1940, arguing Chambers v. Florida, which established that coerced confessions obtained by police through duress and violence are inadmissible at trial. That year, he founded the NAACP Legal Defense and Educational Fund and served as its first Director-Counsel, representing numerous black defendants charged with crimes in Southern courts. In 1941, Marshall represented W.D. Lyons, an illiterate 21-year-old black sharecropper beaten into confessing to murdering a white family and burning down their home. Enduring racial epithets from an initially hostile white community, Marshall subjected the police who had framed Lyons to withering cross-examination and showed that they had obviously lied on the stand. Lyons was convicted and—after the U.S. Supreme Court denied his appeal—executed, but historians say the case awakened Marshall to the ability of lawyers to empower oppressed communities. Later, Marshall won retrials for three young African-American men who had been falsely accused of raping a 17-year-old white woman in Lake County, Florida. Two of the "Groveland Four" (a fourth young man charged in the case had been lynched by a white mob after escaping from custody) were wrongly sentenced to death; one of them was murdered and the other shot several times by a sheriff while being transported to their retrial. The surviving defendant was convicted and resentenced to death, but received a last-minute commutation. The third defendant—who was 16 at the time—received a life sentence. In April 2017, the Florida legislature issued an apology for the killings and wrongful convictions and asked Governor Rick Scott to issue posthumous pardons for the four. In November 1946, Marshall nearly was murdered. Tennessee law enforcement intercepted his car and placed him in the back of an unmarked car after he had won an acquittal for one of 25 black man charged with riot and attempted murder in the wake of local racial violence. They drove him down isolated roads and, Marshall later said, "were taking me down to the river where all of the white people were waiting to do a little bit of lynching." A white lawyer and a white journalist saw the abduction and followed the unmarked car, foiling the lynching. The Legal Defense Fund won acquittals in 23 of the 25 Tennessee riot cases. Marshall wrote in his concurrence in Furman that "[i]t is evident ... that the burden of capital punishment falls upon the poor, the ignorant and the underprivileged members of society." He firmly believed that the public would do away with the punishment if they understood the facts of how the death penalty actually was applied. The question for him in Furman was "not whether a substantial proportion of American citizens would today, if polled, opine that capital punishment is barbarously cruel, but whether they would find it to be so in the light of all information presently available.”

Oklahoma to Have Longest Hiatus Between Executions in Modern Death-Penalty History

Oklahoma will not execute anyone in 2017 and, without an execution protocol in place, cannot seek any execution dates through at least January 2018, marking the longest period of time between executions in the state in the modern era of capital punishment. As part of an agreement in a federal lawsuit challenging the state's execution procedures, the Oklahoma Attorney General's office may not request execution dates for any prisoner for at least five months after the state adopts a new execution protocol. According to an August 22 report by FOX 25 news in Oklahoma City, the state's Department of Corrections has not adopted a new protocol and the state attorney general's office says it has not been notified of any pending changes to execution procedures. Oklahoma—whose 112 executions rank third among U.S. states since the 1970s—has not carried out any execution since January 15, 2015, when it violated its protocol by using an unauthorized drug in the execution of Charles Warner. The only other time there had been a three-year hiatus between executions since the state resumed executions in 1990 was from March 13, 1992 to March 20, 1995, between the executions of Olan Robison and Thomas Grasso. The current halt in executions comes in the wake of three consecutive botched execution attempts in the state. In April 2014, Oklahoma botched the execution of Clayton Lockett, who died of a massive heart attack as prison officials were attempting to call off the execution. In September 2015, the governor halted the execution of Richard Glossip at the last moment after learning that state officials had again obtained the same wrong drug it had used to execute Warner. Since then, a grand jury has issued a scathing report detailing "blatant violations" of the state's execution protocol, key corrections officials involved in the botched executions have retired, and an independent, bipartisan commission has reviewed the entire capital-punishment system in Oklahoma and recommended a moratorium on executions until the state enacts "significant reforms" at all stages of the state's death-penalty process. 

Federal Court Invalidates Oklahoma Conviction and Death Sentence of Native American for Murder on Tribal Lands

A federal appeals court has vacated the conviction and death sentence of Patrick Dwayne Murphy (pictured), a Native-American death-row prisoner in Oklahoma from the Muscogee (Creek) Nation, holding that the state lacked authority to try him for a murder that occurred within the borders of the Creek Reservation. On August 8, a unanimous three-judge panel of the U.S Court of Appeals for the Tenth Circuit sided with Murphy and Native American friend-of-the-court advocates in designating a region that spans eleven counties across Oklahoma—including most of Tulsa—part of “Indian country,” subject to exclusive federal jurisdiction for certain crimes enumerated under the federal Major Crimes Act. “Mr. Murphy is a member of the Muscogee (Creek) Nation,” the court wrote. “Because the homicide charged against him was committed in Indian country, the Oklahoma state courts lacked jurisdiction to try him.” The decision does not absolve Murphy of potential criminal liability for the murders: "The decision whether to prosecute Mr. Murphy in federal court," the Circuit panel said, "rests with the United States." The land in issue—falling inside the reservation boundaries of the Creek Nation drawn by the United States in 1866—has long been claimed by the Muscogee (Creek) Nation and lawyers for the Muscogee (Creek) Nation, the Seminole Nation of Oklahoma, and the United Keetoowah Band of Cherokee Indians in Oklahoma had filed amicus curiae briefs in the case arguing that it constituted Indian country under federal law. Judith Royster, an expert on tribal law at the University of Tulsa, said that the court's ruling reaffirms that claim. However, the decision's impact, she says, extends beyond the Creek Nation: "any crime committed by or against an Indian, not just a Creek citizen, but any Indian, in the boundaries of the Creek reservation can no longer be prosecuted by the state of Oklahoma,” said Rosyter. The Creek Nation jurisdiction includes Hughes, McIntosh, Okfuskee, Okmulgee, Wagoner, and Creek counties and portions of Tulsa, Mayes, Seminole, and Rogers counties. Muscogee (Creek) Nation Principal Chief James Floyd celebrated the court’s decision. “Today’s unanimous decision is a complete and unqualified victory for not only the Muscogee (Creek) Nation, but all of Indian Country,” Floyd said. “This decision affirms the right of the Nation and all other Indian Nations to make and enforce their own laws within their own boundaries.” Murphy first raised the jurisdictional issue in his second application for state post-conviction relief in 2004 after losing prior court challenges to his conviction and sentence, including one that claimed he should not be executed because he is intellectually disabled.

Oklahoma Prisoners Argue State's Application of the Death Penalty Is Racially Biased, Unconstitutional

Newly available evidence shows that Oklahoma's death penalty unconstitutionally discriminates on the basis of race, according to petitions filed by lawyers seeking to overturn the death sentences imposed on two African-American defendants, Julius Darius Jones (pictured) and Tremane Wood. Jones—a high school athlete and honor student who did not fit the description of the shooter and who has continuously maintained his innocence—and Wood were convicted and sentenced to death for killing white male victims in separate cases. Both men's claims are based on data from a study of race and the death penalty that was released as part of the April 2017 report of the Oklahoma Death Penalty Review Commission showing that, for the period 1990-2012, Oklahoma defendants convicted of killing white victims were more than twice as likely to be sentenced to death as those convicted of killing victims of color. For cases like Jones's and Wood's that involved only white male victims, defendants were nearly three times more likely to be sentenced to death. The study also showed that defendants of color were nearly three times more likely to be sentenced to death if convicted of killing a white victim than a victim of color and nearly twice as likely as a white defendant to be condemned for killing a white victim. Jones's petition argues that his death sentence violates the state and federal constitutions because he "faced a greater risk of execution by the mere happenstance that the victim who he was accused and convicted of killing was white.” Both Jones and Wood were capitally charged in Oklahoma County, one of the 2% of American counties responsible for more than half of all prisoners on the nation's death rows. 54 men and women were sent to death row during the 21-year administration of District Attorney “Cowboy” Bob Macy, who retired in 2001. The judge who presided over Wood's trial has made openly racist remarks, saying in 2011 that Mexicans are “nothing but filthy animals.”  Jones was sentenced to death by a nearly all-white jury, following what his current lawyers describe as “pervasive and highly racialized pre-trial media coverage” and “racialized remarks made by prosecutors and at least one juror” during his trial. Jones has also filed a motion with the Oklahoma County court seeking DNA testing on a red bandana that an eyewitness said the shooter was wearing over his face at the time of the murder. His lawyers say the bandana may contain DNA evidence that would identify the shooter and exonerate Jones.

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.” 

Pages