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.”