DPIC’s New Report on the Racial History of Oklahoma’s Death Penalty

Ngozi Indulue 0:01

Hello and welcome to discussions with DPIC. I’m Ngozi Ndulue, the Deputy Director at the Death Penalty Information Center. Today we’re talking about DPIC’s recently released report - ‘Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty.’ I’m joined by Tiana Herring, DPIC’s Data Storyteller and the author of the report. So let’s start by just walking folks through the report. Tiana, can you give a quick overview?

Tiana Herring 0:28

Deeply Rooted places Oklahoma’s death penalty within its historical context to demonstrate how Oklahoma’s death penalty system is, in many ways, a product of its long and troubled history with communities of color. So we begin the report by talking about Oklahoma’s early racial history: from the forced migration of Native American tribes on the Trail of Tears, to mass racial violence and lynchings, to the gradual shift where lynchings and state sanctioned executions become interchangeable in a sense in the public mind. We continue by providing an overview of civil rights challenges in the state, which includes a discussion of the decades long struggle for voting rights and legal challenges to segregation. That then brings readers to our examination of the modern use of the death penalty, and the ways in which racial discrimination affects all aspects of the death penalty in this state. This section discusses how systemic issues like official misconduct and wrongful convictions, have racial justice implications that have particularly harsh effects on defendants of color. One of the most powerful parts of this section, I think, are these vignettes where we’re able to highlight the stories of people who have been or are on Oklahoma’s death row. Because it’s one thing to talk about the systemic issues in an abstract sense, but reading these individuals’ stories provides readers with concrete examples of what the data is showing us. Ngozi, you wrote DPIC’s 2020 Enduring Injustice report. Can you talk about how the Oklahoma report relates to it?

Ngozi Indulue 1:51

Sure. When we thought about writing Enduring Injustice, we knew that we needed to connect the overall, national racial history of the death penalty to what is happening today. And of course, there are trends that are consistent nationwide, but we were also really aware that the story of the death penalty is a local story. We know that counties and county prosecutors today, have such an outsized role in determining whether there will be a capital trial and whether a death sentence is pursued. So, we decided that to really tell the full story of the racial history of the death penalty, that we needed to actually look at individual jurisdictions, so look at states and particular outlier counties within those states. And in particular, we were thinking about states that were really on the cusp of change.

Tiana Herring 2:52

And why Oklahoma? What do you think is important about focusing on Oklahoma’s racial history right now?

Ngozi Ndulue 2:58

This summer, Oklahoma announced that it was scheduling twenty-five executions to happen in the next two years. This schedule was set with the backdrop of a number of concerns about individual cases of people on death row, and broader systemic concerns. So, there was a 2014 botched execution of Clayton Lockett, 2015 execution with the wrong drug of Charles Warner, and the near execution of Richard Glossip with the wrong drug. All of these executions resulted in in-depth investigations about the state’s execution protocol and the way that secrecy was affecting whether people were actually following the state’s policies and laws. We also saw a big picture overview of the death penalty and its use in Oklahoma, with the 2017 Oklahoma Death Penalty Commission report. That brought together a really diverse group of stakeholders to actually investigate each aspect of the death penalty in Oklahoma and to provide concrete recommendations. However, very few of those recommendations have actually made their way into changes in the Oklahoma death penalty process. Now, not all of the issues that have been highlighted about Oklahoma’s death penalty are racial justice issues. We have Richard Glossip’s issues around innocence and prosecutorial misconduct, but we also have seen places where racial justice is intertwined with broader systemic concerns, such as Julius Jones’s case, another case where there was strong evidence of innocence, but there are also threads of racial bias that were seen throughout the prosecution of his case. So, because of that, it seems like Oklahoma is at a crossroads: it can continue to be the national outlier that it has been, being second in the country in executions, having Oklahoma County and Tulsa County leading in per capita executions, or it can take a more deliberative look. So we thought that it was important to actually shine that spotlight on Oklahoma. Another piece of that is also that it has some unique issues around Native American sovereignty and Native Americans and the death penalty that we thought were important to highlight. And Tiana, I have a question for you about what your research has found. What familiar threads did you see in the story of racial justice and Oklahoma’s death penalty, and what threads seemed unique to the state?

Tiana Herring 5:56

Sure. So many of the problems we see with the death penalty at the national level were also present in Oklahoma. For example, there is clear geographic arbitrariness in Oklahoma’s death penalty system, with Oklahoma County and Tulsa County accounting for a disproportionate share of death sentences and executions. For example, Oklahoma County in particular, accounts for 20% of the state’s population, but nearly 40% of all Oklahoma death sentences. Additionally, there are many racial disparities in the death sentencing and executions, both in these counties and also at the state level. The Black populations in Oklahoma and Tulsa counties, for example, are 16 and 11%, respectively, but Black people received 46% of death sentences imposed in both counties. Unsurprisingly, there are, of course, other racial disparities that exist in Oklahoma’s death penalty system. For example, when you’re looking at the age people are at the time of arrest, we saw that Black people were arrested at much younger ages than white people. And this comes into play when you’re thinking about brain maturity and development, and like how that interacts with culpability. At least some of the disparity is likely attributed to the race of victim effect, which is another common thread we see in other states. On average, 56% of murder victims in Oklahoma are white, but, by contrast, 74% of death sentences imposed for homicides from 1990 to 2012 in Oklahoma involved white victims. And these same disparities emerge when you look at execution data. So we found in our report that, in cases with victims of a single race, there were nineteen Black defendants who had been executed for the murder of white victims, while only two white defendants had been executed for the murder of Black victims. And, as you can see, like these, this trend suggests a preferential valuing of white victims that’s really reminiscent of what we see when reviewing cases from like the heydays of lynchings. But still, there are a lot of ways in which Oklahoma is unique. As you mentioned, the state’s Native American history has really shaped the death penalty in a lot of ways. We also looked at the 19th century execution statistics, and we found that most of the people subjected to executions at that time were Native American, which was likely reflection of the area’s demographics at the time after the Trail of Tears brought many Native Americans to the territory. But in a sense, even today, Native Americans are uniquely affected by the death penalty in Oklahoma. So, Oklahoma has imposed the most death sentences on Native American defendants in the States, and is also responsible for a third of all executions of Native Americans since 1976. And, as you also mentioned, there are a lot of recent reports about Oklahoma’s death penalty system: The Death Penalty Review Commission report from 2017. There’s a 2016 grand jury report talking about Charles Warner’s botched execution and how there are procedural flaws at every stage of that process. And also recent reports that have come out about Richard Glossip’s case as well, which are alleging official misconduct. So we see that Oklahoma’s death penalty system has been the subject of so many extensively researched reports, and all of them have a very similar conclusion, which is just that Oklahoma’s death penalty system is deeply flawed.

Ngozi Ndulue 9:13

Were there any gaps in telling the story that you feel the report fills in?

Tiana Herring 9:19

One of the themes that started to emerge as I was researching Oklahoma, was the state’s history of defying Supreme Court decisions. We include several examples in the report, but I’ll give you just a couple of them. One was related to Ada Lois Sipuel Fisher’s admission to the University of Oklahoma’s College of Law. So, Sipuel Fisher was a Black woman from Oklahoma who wanted to be a lawyer, but at the time there weren’t any Black law schools in the state, so she applied to the University of Oklahoma. She was then rejected, specifically because of her race, and with the NAACP, she brought this case to the Supreme Court to challenge the segregation. In 1948, the Supreme Court ordered that the state of Oklahoma had to provide her with access to a law school. Instead of going to the perhaps obvious route of just admitting her to the University of Oklahoma where she wanted to attend, the state legislature created a law school just for her. And this school had three instructors, no plan of study, it was just in a random room in the State Senate building, which is very clearly not within the intent of the Supreme Court’s original decision. Oklahoma only reverses course after Sipuel Fisher’s attorneys brought the matter back to the Supreme Court and the Attorney General expected the state would lose and didn’t really want to travel back to DC, just for that loss. And this thread does continue into the present day, most recently with the Supreme Court’s 2020 decision in McGirt v. Oklahoma. The 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. All of the examples we found and include in the report, were specific to racial justice decisions. So these are situations where the Supreme Court is very clearly trying to move the needle in a more inclusive, less discriminatory direction, that would benefit people of color. Yet, the state chose over and over again in many of these decisions to defy the Supreme Court’s intents, putting the burden on communities of color to continue to fight back. Ngozi, did anything surprise you when reviewing the Oklahoma report and research, especially having done this work on the national level?

Ngozi Ndulue 11:43

Well, like you said, a lot of what we saw in Oklahoma mirrors national trends when we’re talking about race of victim and people being much more likely to be sentenced to death and executed for the murders of white victims. Also having that kind of history of lynching and racial violence that you see as it goes up, in the present. I think for me, one thing that stood out was the the piece that you just talked about, about Native American sovereignty, and how that really ties in to the story of the modern death penalty. Oklahoma has executed at least seven Native American people in the modern era of the death penalty, and including the only Native American woman who has been executed in the US. And that means that they make up 35% of all Native American executions in the country, over this time period. So, thinking about the importance of discussing the connection between sovereignty and the use of the death penalty was really important here in Oklahoma. Also, we hear a lot about the Tulsa Massacre because of the recent anniversary and more media attention, but learning more about mass racial violence, things called whipping parties, that I’d never heard of before in my research around turn of the 20th century racial violence. I think that there were some things that were particular to Oklahoma that I was surprised about. And then just the extent to which Oklahoma County and Tulsa County are national outliers. That was surprising to me. I knew that Oklahoma ranked second to Texas in numbers of modern executions, but looking at Oklahoma County and Tulsa County, in terms of comparing them to other counties with similar populations, it was just really striking how much of an outlier these individual counties were. So Oklahoma County has imposed the most death sentences of any county its size and has carried out more than 2.5 times the number of executions. And then Tulsa County is tied with Montgomery County, Texas, for the most executions of any county its size. If we’re looking for the unique stories around race and the death penalty in Oklahoma, that outlier status, I think is really important because it ties in to some of the pieces that we know disproportionately affect defendants of color and where racial bias plays a roll. So, the story of Oklahoma County can’t be told without talking about prosecutor “Cowboy” Bob Macy, and the prosecutorial misconduct that happened under his watch, where we’ve documented a number of reversals for prosecutorial misconduct, but also places where misconduct was acknowledged but was found to be harmless and tying that into the the forensic scientist, Joyce Gilchrist’s, misconduct where she was found to have provided false forensic evidence. We know that for exonerees of color, they’re much more likely to have prosecutorial misconduct or official misconduct, in general, play a role in their initial conviction, and we see that pattern happening with this Oklahoma County story as well. So, the features of Oklahoma’s racial history that were unique, were also really powerful when we looked at the individual counties where we saw the most use of the death penalty.

Tiana Herring 15:36

And do you think there are lessons to be learned by other states?

Ngozi Indulue 15:39

I do. Looking at Oklahoma’s unique history still provides some trends that other states can consider when evaluating their death penalty system. As I was just talking about, Tulsa and Oklahoma County as outliers, we can see how their use of the death penalty has implications for racial justice in the criminal legal system, and how it has actually caused questions about the reliability of death sentences in Oklahoma. So, ten people have been exonerated from Oklahoma’s death row. Five of those people are black and a number of those exonerations came from these high-use counties - Tulsa and Oklahoma counties. And we see that in the cases of the Black exonerees, we saw that perjury or false confession contributed to the vast majority of their wrongful convictions. But we also see that there’s a large role for prosecutorial misconduct, and that we’re seeing trends of prosecutorial misconduct in these kind of outlier counties. So, of the thirty reversals or exonerations, in which prosecutorial misconduct was identified, that DPIC has identified for Oklahoma death sentences, eleven of those happened in Oklahoma County, and four in Tulsa County. And we see that if prosecutorial misconduct is happening and leading to reversals, there are a number of cases in which prosecutorial misconduct has happened, but has been dismissed as harmless error. So, all of these issues around the number of exonerations that have happened, the disparities in the race of those exonerated and the reasons for exoneration, and just the general questions about how many cases have unremedied prosecutorial misconduct, really put into question the reliability of the death penalty and its administration in these counties and in Oklahoma, in general. So I think that we should, any state that is evaluating its death penalty system, has to look at these issues, and it’s outlier counties in particular, to see what the ties are to racial bias in the legal system, what potential remedies are, and whether the use of the death penalty in those outlier counties is raising concerns about the overall use of the death penalty in that state. So, as we’re closing here, Tiana, could you think about two or three things that you would want people to take away from the report?

Tiana Herring 18:47

Sure. The first is that the twenty-five scheduled executions are being carried out despite the mountain of evidence that we talked about that has pointed to systemic problems with Oklahoma’s death penalty system. So, Oklahoma is executing vulnerable people—people with brain damage, chronic childhood trauma and severe mental illnesses—within a system that has been deemed to have unacceptable risks of inconsistent, discriminatory, and inhumane application of the death penalty. The second is that it’s really important to look at these outlier counties, since those counties often drive death sentencing and execution trends. So as we discussed, in Oklahoma, those counties would be Oklahoma County and Tulsa County. And Oklahoma County in particular, has a very troubled history with the death penalty and rampant prosecutorial misconduct. As a result of Tulsa and Oklahoma counties using the death penalty so much, we’ve seen, we found in our report that death sentencing in these jurisdictions is essentially no more reliable than a coin toss, given that half of all death sentences have resulted in reversals. And the last thing is that systemic issues in the state’s use of the death penalty definitely affect all capital defendants. However, the effects are particularly harsh on defendants of color, as they are more likely to suffer from the effects of having all-white juries or nearly all-white juries, and are also at a greater risk of being executed if they have intellectual disabilities. Essentially, the idea here is that Oklahoma’s execution spree is harming everyone, and in many ways, the problems we’re seeing now are reflective of the state’s troubled history with people of color that has been around since before statehood. Thank you listeners, for joining us for this episode of Discussions with DPIC. You can find our report ‘Deeply Rooted: How Racial History Informs Oklahoma’s Death Penalty’ on deathpenaltyinfo.org. In addition to the report, we have posted 10 key facts you should know about Oklahoma’s death penalty, a two page infographic, and a series of data visualizations. Thank you again for listening and be sure to subscribe to Discussions with DPIC on the podcast app of your choice, to make sure you never miss an episode.