New DPIC Podcast: Former Governor Brad Henry and Former U.S. Magistrate Judge Andy Lester, co-Chairs of the Oklahoma Death Penalty Review Commission, Call for Halt to Executions

In the August 2022 Discussions With DPIC podcast, former Oklahoma Governor Brad Henry and former U.S. Magistrate Judge Andy Lester (pictured), two of the co-chairs of the bipartisan Oklahoma Death Penalty Review Commission, call on state officials not to rush forward with the state’s planned execution of 25 prisoners. Speaking with DPIC executive director Robert Dunham, Governor Henry, a Democrat, and Judge Lester, a Republican, discuss the commission’s findings of a broken system that risks executing the innocent and that, they say, should not be executing anyone, at least until significant reforms have been adopted.

The Oklahoma Death Penalty Review Commission was created in March 2016 during a pause in state executions in the wake of the botched 2014 and 2015 executions of Clayton Lockett and Charles Warner and the September 2015 near-execution of Richard Glossip. The independent bipartisan commission was co-chaired by Henry, Lester, and Oklahoma Court of Criminal Appeals Judge Reta M. Strubhar. It included former prosecutors, defense lawyers, judges, citizens, crime victim advocates, and law professors, some of whom supported the death penalty and some who opposed it.

The commission evaluated the Sooner State’s death penalty practices from pretrial procedures through execution, exoneration, or clemency and made 46 recommendations for reform. “The most critical recommendation that we made,” Governor Henry said, “was that unless and until significant reforms occur in the entire death penalty process, we should not be executing people in Oklahoma. … [I]f we’re going to have the death penalty in Oklahoma, my goodness, it ought to be done right.”

Lester, a staunch conservative, strongly agrees. “I think it’s important that we halt [the executions] for a season and start implementing these reforms, as opposed to just plunging ahead,” he told Dunham. “I’d like to see us have the reforms first, not the executions and then the reforms.”

Lester says “the system, if we don’t take up the bulk of these recommendations, is broken. And we need to fix the system before moving forward.”

In 2017, the commission released a 300-page report that, Henry says, identified systemic problems and proposed reforms “throughout the process from the initial aspect of what ultimately becomes a death penalty case … through the end, through lethal injection.” In addition to changes in jury selection, interrogation practices, and identification procedures, a lot of the proposed reforms, Lester says, “involve some pretty simple things such as better education for prosecutors, better education for defense lawyers, better education for police officers, better education for judges, better education, basically, for everybody involved in the process.”

Governor Henry expressed concerns about innocence, race discrimination, and Oklahoma’s inability to properly carry out executions.

“I can tell you that in Oklahoma, we’ve had 10 people exonerated from death row,” Henry told Dunham. “[T]hat tells me that it’s likely that we have executed an innocent person in the past. I hate to say that, but I worry about that — and that concerns me greatly about the future.”

Noting the report on racial disparities released by the commission as an appendix to its recommendations, the governor explained, “if you are a black defendant and your victim is white, you are at much greater risk of being convicted and put to death than … if the reverse is true.”

Asked about the history of botched executions and the most recent execution in which Oklahoma prison officials asserted that the execution of John Grant — in which he convulsed more than two dozen times and vomited — had been conducted “without complication,” Henry said, “if we’re going to have a lethal injection process, then we should follow best practices, … and we make recommendations in our report as to what those best practices are. And, frankly, they are not what the Department of Corrections is currently utilizing.”

Lester also found these issues problematic, as well.

Death Penalty Information Center reviews of executions, exonerations, and death sentences overturned as a result of prosecutorial misconduct found that Oklahoma County was an outlier in all three areas. Of the more than 560 death sentences overturned or wrongfully convicted death-row prisoners exonerated in the United States because of prosecutorial misconduct, 11 were tried in Oklahoma County. The county’s five death-row exonerations were more than in all but three counties in the country. And Oklahoma County accounted for more executions than any U.S. county outside of Texas, with 12 of the state’s 25 scheduled executions also coming from Oklahoma County.

Lester said that “perhaps the most surprising finding for me during our entire study was how important it is where the murder occurs.” The “vast majority” of Oklahoma death sentences have occurred in either in Tulsa or Oklahoma counties, he said, “and it’s not just because there are more people there, even per capita.” “There can be a number of reasons for that,” Lester added. “Some of it has to do with who the prosecutor is, and perhaps some of it has to do with what the tactics were.”

“Whenever there’s any type of misconduct in a capital case, we can’t stand that. We can’t have that. Period,” Lester said. “It calls into question everything about capital punishment and needs to be dealt with expeditiously.”

Lester also believes it is “just absolutely vital” to address the racial disparities in Oklahoma’s death sentencing. “And certainly the events of the years following the issuance of the report have shown how important dealing with those racial disparities are,” he told Dunham.

With respect to Oklahoma’s continuing execution problems, Lester said, “candidly, I have serious doubts about whether capital punishment is efficacious today.” While an Oklahoma grand jury investigation of the state’s botched executions found that prison officials’ “paranoia” about secrecy had “clouded their judgment and caused administrators to blatantly violate their own policies,” Lester believes “if we’re going to have [the death penalty], we need to allow it to be used and used properly.” That, he says, means “some secrecy is important. [But] that doesn’t excuse the lack of training. It doesn’t excuse a lack of oversight.”

Despite the largely non-controversial nature of many of the proposals, none has yet been implemented. Henry attributes that in part to lost institutional knowledge and momentum as more experienced legislators who were interested in reform were replaced by new legislators unfamiliar with the issue, and to a lack of political interest in addressing the problems. “Frankly,” he says, “reforming the death penalty process is not a sexy political issue for legislators to carry, or to run for reelection on.”

“The state gets involved in this issue of the day or that issue of the day,” Lester said, “and this one seems to unfortunately, have gone by the wayside.” While Lester says he’s “encouraged that our statewide and local officials and others do agree with the recommendations that we’ve made,” he stressed that the reforms “just need to happen. And they need to happen, not later; they need to happen now.”

Henry believes that reform should nevertheless be attainable because, although “Oklahoma is a conservative state, … at the end of the day, … it is a conservative value to want to serve justice, to want to ensure that both victims and defendants in our death penalty process receive fair consistent and accurate treatment, and that we are not executing innocent people.”

“Plenty of times we disagree on political issues,” Lester said, referring to Governor Henry. “I agree with him, though, that this is a conservative value. This is the ultimate power that the state as ‘The State’ has. And The State should not be exercising any power in an irrational way. We need to be absolutely certain that if we have the death penalty that we do it the right way. And these recommendations are fairly modest, but vital.”