OKLAHOMA CITY (CN) – A bipartisan commission unanimously recommended Tuesday that Oklahoma continue with its two-year-old moratorium on the death penalty, citing “disturbing” findings that had its members question if executions of innocent people are prevented.
Headed by former Gov. Brad Henry, the 11-member Oklahoma Death Penalty Review Commission was formed shortly after current Gov. Mary Fallin stayed the execution of Richard Glossip in October 2015. She halted all executions after prison officials discovered they had the wrong execution drugs. They received potassium acetate as part of the state’s new, replacement three-drug execution protocol, but potassium chloride was supposed to be used.
States were forced in recent years to seek replacement execution drugs from compounding pharmacies after death-penalty opponents persuaded large drug manufacturers to stop making execution drugs.
“The Commission did not come to this decision lightly,” the 294-page report states. “Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.”
The commission cites the U.S. Supreme Court’s emphasis of the death penalty being for the “worst of the worst” criminals.
“Unfortunately, a review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consistently, and humanely, as required by the federal and state constitutions,” the report states. “These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.”
The report makes sweeping recommendations at every stage of the criminal justice system: from evidence gathering to the role of the judiciary to the roles of defense attorneys and prosecutors. It recommends amendments to the Oklahoma Uniform Jury Instructions to direct jurors to consider expert testimony on “the limitations and use of eyewitness testimony” in death penalty cases.
It recommends police use “double-blind” procedures when conducting photograph or live lineups. The commission further suggests more training of police, prosecutors and defense attorneys on the limitations of eyewitness identification in such cases. It recommends the Oklahoma Bar Association provide more training to defense, trial and appellate attorneys to handle the “unique demands” of capital cases.
In a press conference at the Oklahoma Capitol, commission members said there were “significant differences” of opinion among commission members as to the validity of the death penalty itself, but that the recommendation to continue the moratorium was unanimous.
Henry said the “obvious answer” as to why the death penalty is so flawed is because of a lack of resources, that attorneys for indigent defendants have overwhelming case loads and do not have the money for investigators or expert witnesses.
Henry told reporters it was likely Oklahoma had executed an innocent person, alluding to several exonerations since the death penalty was reinstated four decades ago.
Death-row inmates Richard Glossip and Benjamin Cole had sued the state in 2014, arguing the first drug in Oklahoma’s execution protocol, midazolam, fails to render a person insensate to pain in violation of the Eighth Amendment. They sued after the gruesome, botched execution of Clayton Lockett in April 2014.
Lockett was declared unconscious after being injected with midazolam, but breathed heavily, writhed, clenched his teeth and strained to lift his head off a pillow three minutes later. Medical team members told investigators the death chamber was a “bloody mess” due to difficulty tapping a second femoral intravenous line to inject the drugs and that “blood squirted up and got all over” a doctor.
Oklahoma Department of Corrections Director Robert Patton ordered the execution stopped, but it took Lockett 43 minutes to die of a heart attack anyway. Prison officials later blamed the botched execution on the first intravenous line in Lockett’s groin being placed incorrectly and then covered with a sheet.
Further doubt was cast on future executions when it was revealed in October 2015 that potassium acetate was incorrectly used in the execution of Charles Warner, who said “my body is on fire” as he was injected.
An Oklahoma grand jury in May 2016 declined to charge state officials over the error in Warner’s execution, but criticized them for being “careless” in using the wrong drugs. It also recommended the state look into using nitrogen gas to executed inmates in the future.