The Oklahoma Death Penalty Review Commission after more than a year of work has recommended that a moratorium on carrying out capital punishment in the state be continued indefinitely. “It is undeniable that innocent people have been sentenced to death in Oklahoma,” the report concludes.
The bipartisan commission’s findings span nearly 300 pages, covering every stage of the state’s death penalty system. It addresses such issues as the problematic interrogation of suspects, overworked defense attorneys in capital cases, and an execution process with a disastrous track record. Headed by former Gov. Brad Henry, former federal magistrate Judge Andy Lester, and Judge Reta Strubhar, the first woman to sit on the state’s Court of Criminal Appeals, the commission urges the state to correct the “systemic flaws” in its death penalty system before seeking to restart executions, or sentencing any new defendants to death row.
It is not the first time a report has found deep problems with the death penalty in Oklahoma. A blistering grand jury report released last year found myriad failures by state officials entrusted to carry out lethal injection. But this is a more far-reaching review, conducted by an 11-member commission that, beginning in 2015, “gathered data, reviewed scholarly articles, commissioned studies, and conducted interviews” to thoroughly examine the state’s capital punishment system from top to bottom. Its specific findings and recommendations are divided into 10 chapters spanning subjects from the handling of forensic evidence to the clemency process. “The commission hopes this report will help foster an informed discussion among all Oklahomans about whether the death penalty in our state can be implemented in a way that eliminates the unacceptable risk of executing the innocent, as well as the unacceptable risks of inconsistent, discriminatory, and inhumane application of the death penalty,” the co-chairs write.
The commission was formed in the fall of 2015, not long after the state attempted to kill Richard Glossip on September 30 of that year. It was his third date with death. Only after courts had cleared the way for Glossip’s execution — and as witnesses were waiting to be brought to the viewing chamber — did state officials discover they had procured the wrong drug with which to kill him, impermissibly substituting an untested drug in place of one that was specified in the official execution protocol. In a dramatic 11th-hour stay by Gov. Mary Fallin, the state called off the execution.
The high-profile mistake — the latest in a series of ugly incidents casting negative attention on Oklahoma executions — prompted then Attorney General Scott Pruitt to impose the current, indefinite moratorium in order to give officials a chance to sort out what “had transpired” leading up to Glossip’s failed execution. That inquiry morphed into a multi-county grand jury investigation after news broke less than a week later that the state had previously killed another man, Charles Warner, in January 2015 using the same untested and improper drug that it had erroneously obtained to execute Glossip.
As The Intercept reported following the release of the grand jury report in May 2016, its findings showed dizzying incompetence and disregard for protocol in the run-up to Glossip’s planned execution, as well as deceit on the part of state officials, who afterward lied to the public about key aspects of what happened. Particularly egregious were the actions of the general counsel for Gov. Fallin, who, when confronted with evidence that Warner had been killed using the wrong drug, protested that stopping Glossip’s execution “would look bad for the state of Oklahoma,” because officials would then have to admit they had carried out an execution with the wrong drug.
The commission expanded on the grand jury findings by widening the review to consider the system as a whole. Although Glossip is just one example cited in its report, the case is particularly emblematic of the range of failures the commission urged the state to address. Glossip was once mainly known as the named plaintiff in the U.S. Supreme Court case Glossip v. Gross, which upheld the state’s lethal injection protocol — and specifically the use of midazolam, a sedative that remains controversial. But his case exploded onto the national stage after it was exposed that, as Glossip has insisted for decades, he may well be an innocent man. Shortly after the Supreme Court’s June 2015 ruling opened the door to Glossip’s execution, an investigation by The Intercept cast serious doubt about the evidence behind his conviction. In the run-up to Glossip’s scheduled execution that fall, his attorneys raced to uncover more evidence that their client had been wrongfully convicted, while the state sought to push his execution through anyway.
Glossip was sentenced to die for the January 7, 1997, murder of his boss, Barry Van Treese, who owned a seedy motel in Oklahoma City, where Glossip worked as the manager. The state conceded from the start that Glossip took no part in carrying out the actual murder — the reason no physical evidence linked him to the bloody crime — but argued over two trials that Glossip convinced a hapless 19-year-old named Justin Sneed to do the job for him, in exchange for money. Indeed, Sneed confessed to the murder and traded his testimony against Glossip for a chance to avoid the death penalty. Sneed is currently serving out a sentence of life without parole at a medium security prison.
But in obtaining Sneed’s confession, investigators offered Sneed the opportunity to implicate Glossip — before Sneed even shared his firsthand account of the crime. “We know this involves more than just you, OK?” Oklahoma Police Detective Bob Bemo tells Sneed in the interrogation video. In another leading question, he asks, “You know Rich is under arrest, don’t you?” Sneed did not know. But shortly thereafter, he offered up a story that implicated Glossip as the mastermind behind Sneed’s grisly crime.
Oklahoma courts never vetted Sneed’s testimony to determine whether it was reliable. Nor did Detective Bemo or other state actors understand the serious role that incentivized informant testimony plays in wrongful conviction cases. In its report, the commission makes recommendations that would almost certainly have impacted the conviction of Glossip had they been standard practice in 1997. These include a requirement that police receive training “consistent with best practices” for interrogation techniques, that courts vet the reliability of informant testimony before allowing it before the jury, and that prosecutors and law enforcement receive “mandatory” training on the common causes of wrongful convictions.
The commission’s report comes on the heels of “Killing Richard Glossip,” a multi-part TV series launched by Investigation Discovery. Directed by Joe Berlinger, whose previous work includes the documentaries that helped lead to the release of the famed West Memphis Three in Arkansas, the series draws on The Intercept’s reporting, taking viewers on a journey through the case to show how states’ labyrinthine criminal justice systems can entrap and even execute the innocent.
While specific to Oklahoma, the report also comes at a time when the death penalty is making national headlines and reigniting passions over the issue. In Arkansas, three executions have been carried out over the course four days this month, part of an unprecedented rush to kill that has raised controversy across the country. At a rally at the state Capitol earlier this month, Damien Echols, who spent more than 18 years on death row as a member of the West Memphis Three, spoke alongside Paris Powell, a death row exoneree from Oklahoma, who flew to Little Rock to warn the state about the risk of executing innocent people.
In the face of overwhelming legal challenges, Arkansas has failed to carry out its original plan of executing eight people over the course of 11 days — a ramped-up schedule prompted by the imminent expiration of the state’s stash of midazolam. But the cases that have culminated with an execution have placed the pitfalls of capital punishment on full display. To those familiar with Oklahoma’s embattled death penalty system, the problems are all too familiar. Ledell Lee was executed on April 20 despite his insistence upon his innocence and his pleas that the state give him a chance to test critical DNA evidence. More recently, on April 24, Jack Jones Jr. and Marcel Williams were killed back to back, in executions that were far from perfectly carried out. While the state and some witnesses have said there is no proof the executions were botched, prison staff struggled to find a vein in both cases and witnesses described movement that should not have occurred following an efficacious dose of midazolam.
These problems were entirely predictable; in their many filings on behalf of Arkansas prisoners last month, defense attorneys pointed to Oklahoma as a cautionary tale, describing the nightmarish execution of Clayton Lockett in 2014. Lockett’s execution was the first time Oklahoma used midazolam, a sedative relatively untested for use in lethal injection that has also been adopted by Arkansas. The drug was first haphazardly substituted into the standard three-drug lethal injection protocol in Florida due to diminishing supplies of other, previously relied upon drugs. Other states followed suit, despite signs — and warnings from medical professionals — that midazolam is not capable of rendering a person fully unconscious for the purpose of a humane execution. In Lockett’s case, prison staff failed to properly insert the IV lines into his body; over 43 minutes, witnesses saw Lockett writhe on the gurney, in a spectacle described as a “bloody mess.”
Should Oklahoma continue with capital punishment, the commission recommends that it adopt the “most humane and effective method of execution possible” — they suggest a one-drug barbiturate protocol — and that it “require verification” at every stage of the process that the proper execution drugs have been obtained. But as in Arkansas, where an insistence on obtaining drugs in secret has led to lawsuits and chaos, Oklahoma has made it impossible to guarantee such a thing. Under a secrecy statute passed in 2011, the commission notes, Oklahoma officials can now purchase drugs using cash, “without creating a record, thereby limiting review by the state, courts, or public concerning the legality or propriety of the purchase, or concerning other accountability issues such as the origin, cost, and reliability of the drugs.”
By asking the state of Oklahoma to revise its capital punishment system through and through, the commission presents a challenge that is sure to be costly, time consuming, and likely impossible given the entrenched problems that have defined the death penalty over the course of U.S. history. With the number of death row exonerees climbing to 158 this month, the state would do well to listen to Paris Powell, a man Oklahoma once planned to kill. As he said in front of the Arkansas state Capitol this month, “There’s a lot of kids that are gonna get up over the next couple weeks and ask their parents what it means to be executed. And they’re not gonna be able to understand it.”