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Commission releases recommendations on future of Oklahoma's death penalty

Heide Brandes / Red Dirt Report
Former Gov. Brad Henry, co-chair of the Oklahoma Death Penalty Review Commission, speaks to media during a press conference Tuesday.
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OKLAHOMA CITY – The Oklahoma Death Penalty Review Commission released a 300-page report Tuesday that included more than 40 recommendations to address “systemic flaws” to the Oklahoma death penalty process, and unanimously recommended extending the moratorium on executions until those flaws were addressed.

The commission, led by former Oklahoma Gov. Brad Henry (D-Shawnee), listed 46 recommendations in its findings, including the use of a one-drug protocol over the current three-drug protocol for lethal injections, additional resources and training for all those involved from arrest to execution and changes to the appeals process.

“Our primary recommendation based on our in-depth study and work is that the state of Oklahoma should extend the current moratorium on executions until significant reforms are accomplished,” said Henry. “The commission did not come to this decision lightly. We were all disturbed at the volume and the seriousness of the flaws in Oklahoma’s capital punishment system.”
The Oklahoma Death Penalty Review Commission, a bipartisan group of 11 Oklahomans, studied all aspects of the state’s death penalty system, from arrest to execution, and announced its recommendations in the report Tuesday.

“Many of the findings of the commission’s investigation were disturbing and led members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death,” Henry said.

The commission also recommended that, at the very least, those who are sentenced to death should receive the sentence only after a fair and impartial process that ensures they deserve the penalty of death.

The commission’s report included recommendations to address problems in key areas, like forensics, innocence protection, the execution process and the roles of the prosecution, defense counsel, jury and judiciary.

The Oklahoma Death Penalty Review Commission was formed shortly after the state imposed a moratorium on the execution of condemned inmates in October 2015 while a grand jury investigated problems involving recent executions in the state, which included the use of the wrong drugs used in one execution by the Department of Corrections.

The report of the grand jury, released in May 2016, was highly critical and exposed a number of failures in the final stages of Oklahoma’s death penalty.

Fifteen Oklahoma inmates are currently awaiting execution dates following their appeals. The report comes one day after the execution of two inmates in back-to-back lethal injections Monday night, the first double execution in the country since 2000 and a week after the Arkansas’ first lethal injection in more than a decade.

Recommendations

In November, Oklahomans approved the constitutional use of the death penalty by passing State Question 776, but the commission reported that “the burden of wrongful convictions alone requires the systemic changes recommended.”

The report, which took over a year and a half to investigate, is designed to highlight issues about the manner in which the death penalty is imposed and carried out in Oklahoma.

“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,” Henry said.

“The Commission encourages the Oklahoma Legislature, executive branch, and judiciary to take actions to address the systemic flaws in Oklahoma’s death penalty system.”

Some of the recommended changes included:

  • With respect to capital cases, the Legislature should amend Oklahoma law to require that all biological evidence, and any evidence that may be the source of biological evidence, be retained until 60 days after the death of the inmate.
  • The Oklahoma Supreme Court’s judicial training sessions for judges should include forensics training, including updates regarding developments in commonly used forensics fields.
  • Oklahoma should provide an avenue for post-conviction relief based on changing science that casts doubt on either the accuracy of an inmate’s conviction or the evidence used to obtain a sentence of death.
  • Law enforcement officials should record the entire interrogation of any suspect or potential suspect in a homicide case, including any representations or promises made to the person interviewed. There should be a rebuttable presumption of inadmissibility if an entire interrogation is not recorded.
  • Attorneys, investigators and support staff employed by the Oklahoma Indigent Defense System should receive compensation commensurate with that of the district attornys’ offices in their corresponding counties and that adequate compensation should be provided to conflict counsel in capital cases, and the existing compensation cap should be lifted.
  • Oklahoma should adopt the most humane and effective method of execution possible, which currently appears to be the one-drug (barbiturate) lethal injection protocol. Oklahoma should develop a process for continuous review of its execution protocol to ensure that the state is using the most humane and effective method possible.
  • The Oklahoma Department of Corrections should revise its execution protocol to provide clear direction to department personnel involved in preparing for and carrying out executions.

“Some members of this commission would advocate for the abolition of the death penalty while others are staunch defenders of the death penalty,” Henry said. “But we all agree that if we are going to have a death penalty, it must be done right to ensure that no innocent person is ever put to death.”

The commission was created in partnership with the Constitution Project, a nonprofit think tank in the United States whose goal is to build bipartisan consensus on significant constitutional and legal questions.

Henry said the commission would present its findings to the Oklahoma Legislature, executive branch and judiciary for their consideration. Although the panel's recommendations are that only, Henry and other commission members felt the legislature and governor would be open to the recommendations.

"I think [the legislature is] demonstrating [the political will] this year with some of the criminal justice legislation that they are considering. I think the political will is there," he said. "Again, what we are saying is that if you are going to have the death penalty, you have to do it right. I don't think anyone would oppose that."

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Heide Brandes

Heide Brandes is an award-winning journalist and editor with more than 18 years of experience....

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