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

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.

Below are key facts from the Deeply Rooted report.

1. There have been racial dis­par­i­ties in exe­cu­tions since before Oklahoma was granted statehood.

The ear­li­est record­ed exe­cu­tion in Oklahoma was in 1841. Of the 39 peo­ple exe­cut­ed in the 19^th 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).

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.

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.

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.

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.

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.

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.

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.

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.

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