Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty

Introduction Up

…in our case the segregation based upon racial distinctions is in accord with the deeply rooted social policy of the State of Oklahoma.

McLaurin v. Okla. State Regents for Higher Ed., 87 F. Supp. 528, 531 (W.D. Okla. 1949)

Oklahoma’s death penalty is at a crossroads. On August 25, 2022, Oklahoma executed the first person in a series of 25 executions set to occur nearly every month through 2024. The projected increase in executions in Oklahoma comes while the death penalty is in decline nationwide; 2021 had the fewest executions since 1988. Furthermore, Oklahoma’s planned executions are scheduled to move forward despite evidence that there are serious problems with Oklahoma’s death penalty that the state has done little to address.

Death penalty cases in Oklahoma have garnered significant media attention in recent years, providing the public with tangible examples of systemic issues with the state’s capital punishment system. Most recently, Richard Glossip’s case has been championed by more than 60 Oklahoma legislators—most of whom are Republicans—who believe he may be innocent. A recent report produced by more than 30 lawyers who spent 3,000 hours investigating Glossip’s case found possible prosecutorial and police misconduct, inadequate defense lawyering, and facts inconsistent with the prosecutor’s version of events presented at trial. The report highlighted a number of facts that undermine Glossip’s conviction. No physical or forensic evidence ties Glossip to the crime, and recent discoveries have revealed that, at the direction of the Oklahoma County District Attorney’s Office, the Oklahoma City Police Department destroyed boxes of evidence before Glossip’s second trial. His conviction hinged primarily on the statements of a codefendant who received a reduced sentence in exchange for his testimony implicating Glossip. Glossip received a temporary stay of execution in August 2022 and is currently scheduled to be executed on December 8, 2022.

A coalition of diverse stakeholders brought Julius Jones’ case to prominence by highlighting misconduct, racial justice issues, and his strong innocence claims. Jones, a Black man, was sentenced to death by a nearly all-white jury in 2002. He was prosecuted by a district attorney whose tenure was marred by misconduct, and his court-appointed trial lawyers did not investigate or present key evidence. As in Glossip’s case, Jones’ conviction relied heavily on a witness who was given a substantially reduced sentence in exchange for his testimony. An arresting officer and a juror used racial slurs to describe Jones, reflecting the pervasive racial bias that permeated his case. After years of public pressure, Jones’ sentence was commuted in 2021 to life without the possibility of parole. The Justice for Julius coalition is still fighting for his release.

These individual cases illustrate issues found in systemic reviews of the state’s death penalty system. In 2017, a bipartisan commission that included former prosecutors, defense lawyers, judges, citizens, crime victim advocates, and law professors found that the state’s capital punishment system created “unacceptable risks of inconsistent, discriminatory, and inhumane application of the death penalty.” In an extensively researched report, the commission recommended a moratorium on executions until reforms were made. Five years later, Oklahoma has enacted “virtually none” of the suggested reforms.

Investigations into the state’s execution procedures have called into question Oklahoma’s ability to perform executions “with the precision and attention to detail” necessary. A grand jury investigating Oklahoma’s execution procedures following Charles Warner’s execution and Richard Glossip’s near execution in 2015 in which the department of corrections obtained the wrong execution drug, found a multitude of serious problems with following the state’s legally mandated executed procedures. The grand jury discovered that most people involved in the execution process did not know what the protocol required. A pharmacist ordered the wrong execution drug, and no one completed the requisite checks to ensure the correct drug was ordered. And when, hours before Glossip’s scheduled execution, it was revealed that the execution team had obtained the wrong drug, the Governor’s General Counsel encouraged the department of corrections to proceed with the execution without informing the public of the mistake. The grand jury report described these failures as shaking the confidence in the state’s ability to carry out the death penalty.

Despite the lack of action on recognized problems with the state’s administration of the death penalty, Oklahoma has taken steps toward addressing other criminal legal reform issues. It is one of only ten states that has passed legislation to regulate jailhouse informants. It has also passed legislation to reform the use of eyewitness identification and to reduce the incidence of false confessions. Oklahoma legislators have (unsuccessfully) tried creating a Conviction Integrity Review Unit for death penalty cases that allows people on death row to present new evidence in their cases. Prior efforts show that reform is possible, but with two dozen executions looming, Oklahoma’s criminal legal system is facing an inflection point.

To understand Oklahoma’s present-day death penalty, it is important to understand the state’s history—particularly the legacies of racial violence and Jim Crow that have created deep-rooted racial tensions that persist today. Building upon the Death Penalty Information Center’s 2020 report, Enduring Injustice, this report explores the connections between Oklahoma’s racial history and its modern use of the death penalty.

To learn more, read DPIC’s full report Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.

Key Facts Up

Below are key facts from the Deeply Rooted report.

  1. There have been racial disparities in executions since before Oklahoma was granted statehood.
  2. The earliest recorded execution in Oklahoma was in 1841. Of the 39 people executed in the 19th century, 31 (79%) were Native American men and 6 were Black men. The first recorded execution of a white person was in 1899.

    Since 1976, 41% (48/117) of the people Oklahoma has executed have been people of color. Black people make up the majority of the people of color executed in the modern era of the death penalty (37/48).

  3. Oklahoma has a history of defying Supreme Court racial justice decisions.
  4. Oklahoma has a long history of defying U.S. Supreme Court decisions that sought to promote equality before the law and the sovereignty of Native American people. After the Supreme Court ordered Oklahoma to provide Ada Lois Sipuel Fisher—a Black woman rejected from the University of Oklahoma College of Law because of her race—access to law school, the state legislature created a new “law school” exclusively for Sipuel Fisher in a State Capitol Senate room. The “school” had three instructors and no plan of study. Oklahoma reversed course only after Sipuel Fisher’s attorneys brought the matter back to the Supreme Court and the Attorney General expected the state would lose.

    Most recently in McGirt v. Oklahoma, the Supreme Court held that Oklahoma lacked jurisdiction to prosecute Native American people for crimes committed on tribal lands, which included much of eastern Oklahoma. On the same day it ruled in McGirt’s favor, the Court retroactively applied its holding to Patrick Murphy’s pending case, in which Murphy, a Muscogee man, was challenging Oklahoma’s jurisdiction because his crime was committed on tribal land. Deviating from the Supreme Court’s holding in Murphy’s case, the Oklahoma Court of Criminal Appeals refused to retroactively apply McGirt to other cases.

  5. The 25 people Oklahoma scheduled for execution disproportionately represent the most vulnerable populations.
  6. The men scheduled for execution over the next two years are overwhelmingly members of highly vulnerable populations, rather than the most morally culpable offenders. Nearly all face one or more significant vulnerabilities, including serious mental illness, intellectual deficiencies, brain damage, and chronic childhood abuse and neglect. Seven of the ten Black men scheduled for execution were 25 years old or younger at the time of their crime, including three who were 20 or younger.

    Most of the men have been diagnosed with serious mental illnesses, including schizophrenia, bipolar disorder, and post-traumatic stress disorder. At least eight have documented evidence of brain damage. One of the men, Michael Smith, has provided courts extensive documentation of a lifelong disability but Oklahoma has denied him a hearing to present that evidence.

    The men scheduled for execution have been subjected to a multitude of adverse childhood experiences, including serious physical, emotional, and/or sexual abuse. Several have significant evidence of innocence. Seventeen of the 25 were sentenced to death in Oklahoma or Tulsa counties, both of which are national outliers as a result of their voracious execution rates.

  7. On average, capital cases are over three times more expensive than non-capital cases in Oklahoma, not including the differences in the costs of keeping someone on death row.
  8. Conservative estimates place the average cost of an Oklahoma death penalty case at approximately $161,000, even before considering the cost of incarceration after conviction. Non-capital cases cost $51,000 per case, on average—3.3 times less than death penalty cases. State capital appeals drive much of the differences in costs as these appeals are 5.4 times more expensive than non-capital appeals. The state also spends twice as much money per person per day housing people on death row compared to the estimated cost of housing people sentenced to life in prison.

  9. If the victim is white, there’s a greater chance the defendant will be sentenced to death, regardless of the defendant’s race.
  10. Preferential valuing of white victims affects which murders get solved and who is sentenced to death. A study of Oklahoma homicides from 1990–2012 found that only 3% of homicides with known suspects resulted in death sentences and that the race of the victim played a statistically significant role in the outcome. The odds that a person charged with the murder of a white female victim would receive a death sentence were 10 times higher than if the victim was a minority male. Homicides involving minority male victims were the least likely to result in a death sentence.

    While 56% of murder victims in Oklahoma are white, 74% of death sentences imposed for homicides from 1990-2012 and 75% of all executions in the past half century involved white victims. Of the 25 executions scheduled over the next two years, 68% involve white victims.

  11. Half of all death sentences from Oklahoma County and Tulsa County have been reversed or resulted in commutations or exonerations. Prosecutorial misconduct has contributed to many reversals and exonerations.
  12. The prolific use of the death penalty in Oklahoma’s outlier counties has also led to a high reversal rate. Half of all death sentences imposed in Oklahoma and Tulsa counties between 1972 and January 1, 2021 have been reversed in the courts or have resulted in a commutation or exoneration, making a death sentence no more statistically reliable than a coin toss.

    The Death Penalty Information Center has identified at least 30 instances of prosecutorial misconduct resulting in reversals or exonerations in Oklahoma. Eleven of those cases were prosecuted in Oklahoma County, and four were prosecuted in Tulsa County.

  13. Native American people have been uniquely affected by the death penalty in Oklahoma.
  14. Thirty-seven Native American men and women have been sentenced to death in Oklahoma, more than in any other state. Oklahoma has also executed seven Native American people, including the only Native American woman executed in the U.S. These seven executions account for 35% of all Native American executions (7/20) in the country since 1976. Two people currently scheduled for execution, Clarence Goode, Jr. and Alfred Mitchell, are Native American.

  15. Oklahoma County and Tulsa County are national death penalty outliers.
  16. Oklahoma County has imposed the most death sentences of any county its size (population between 750,000–1,000,000) in the United States and has carried out more than 2.5 times the number of executions of any other comparably sized county. Oklahoma County’s per capita execution rate of 5.6 people per 100,000 population is more than triple (3.3 times larger) that of the second ranking county its size (St. Louis County, at 1.7 per 100,000 population).

    Tulsa County is tied with Montgomery County, Texas as the most prolific executioner of any county between 500,000–750,000 in size and has the second largest per capita execution rate at 2.6 per 100,000 population.

  17. Ten people have been exonerated from Oklahoma’s death row, and they spent a combined 97 years in prison. There are racial and geographical disparities in exonerations.
  18. Half of Oklahoma’s exonerees are Black. Perjury or false confession contributed to four of the five Black exoneree’s wrongful convictions. Oklahoma County is responsible for half of all exonerations in the state; the county has produced more capital exonerations than all but four other counties in the U.S.

    The median number of years spent on death row before exoneration was ten years for Black defendants, compared to six years for white defendants. Sixty-two years have been lost in prison to wrongful capital convictions in Oklahoma County alone.

  19. A bipartisan commission found the state’s capital punishment system Oklahoma’s death penalty system created “unacceptable risks of inconsistent, discriminatory, and inhumane application of the death penalty.” Oklahoma has enacted “virtually none” of the suggested reforms.
  20. In 2017, a bipartisan commission including former prosecutors, defense lawyers, judges, citizens, crime victim advocates, and law professors released an extensively research report about Oklahoma’s death penalty system. The commission provided suggested reforms for every aspect of Oklahoma’s death penalty system and unanimously recommended a moratorium on executions until reforms were made. In discussing the decision to recommend a moratorium, the commission wrote that “disturbing” findings “led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death.” Five years later, Oklahoma has enacted “virtually none” of the reforms.

Ten Facts You Should Know About Oklahoma’s Death Penalty Administration

Fact Sheet Up

Infographics Up

Venn diagram with characteristics of 25 defendants Oklahoma scheduled for execution

Chart comparing number of interracial Black-White executions

A comparison of Oklahoma County demographics and death sentences

A comparison of Tulsa County demographics and death sentences

Oklahoma comparison of costs of capital and non-capital cases

A comparison of Oklahoma, Oklahoma County, and Tulsa County executions to state totals

Pie Charts Showing Oklahoma Executions by Race of Defendant and Victim
Graph showing sentence outcomes in Oklahoma and nationally