Death Penalty

Oklahoma Death Penalty Commission Recommends Extending Moratorium

300-page report identifies variety of problems with current application of the death penalty and makes dozens of recommendations.

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Oklahoma DOC

The Oklahoma Death Penalty Review Commission recommended that the state extend its moratorium on executions "until significant reforms have been accomplishing," offering 44 specific recommendations related to a variety of death penalty-related topics they studied in their year-long investigation of the death penalty in Oklahoma and the United States.

"Many of the findings of the Commission's year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death," former Gov. Brad Henry, a a co-chair of the bipartisan commission, wrote in the introduction to its 300-page report.

"Oklahoma's history of wrongful convictions, falsifying evidence, and botching executions clearly demonstrates that the state cannot and can never be trusted with the death penalty," Marc Hyden, the national advocacy coordinator for Conservatives Concerned about the Death Penalty, an anti-death penalty group, told Reason. "The risks are just too high, and when you look at the rewards, they're far too low. The death penalty doesn't deter crime, and often harms murder victims' families, and I think this is the reason that so many conservatives are opposing the death penalty."

"It's great that this commission is highlighting so many problems that have marred their death penalty system," Hyden continued, "but I think we also have to take a serious look at all the other issues too, and to me all these suggest that Oklahoma has not earned the trust of Oklahomans, the kind of trust they need to be able to wield the death penalty."

Hyden pointed to a poll last year that found that while Oklahomans supported the death penalty 3 to 1, a majority, 53 percent, supported repealing the death penalty if it were replaced with life without parole, financial restitution, and property forfeiture.

The commission acknowledged last November's vote on State Question 776, which saw Oklahomans approve enshrining capital punishment in the constitution by a nearly two to one margin. "Nevertheless, it is undeniable that innocent people have been sentenced to death in Oklahoma," the report continued. "And the burden of wrongful convictions alone requires the systemic corrections recommended in this report.

"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 found. "These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma."

The commission presented its findings on forensics, "innocence protection," or wrongful convictions, the role of the prosecution, the role of the defense, jury issues, the role of the judiciary, death penalty eligibility, clemency, and the execution process.

It warned that an "overreliance on forensic analysis without requiring empirical evidence to substantiate its claims—coupled with intentionally bad actors (or unintentional human error) and little oversight, accountability, training, and adherence to scientific procedures and standards—can place innocent people in jail, or even worse, on death row."

"One of the most troubling areas of forensic science, particularly with respect to the death penalty, is the use of unscientific, mistaken, or even fraudulent forensic testing and evidence," the report found. "The power of forensic science is corrupted when forensic experts inappropriately—whether intentionally or inadvertently— testify beyond what has been scientifically supported by empirical evidence, and when they pronounce a 'match' that implicates a defendant."

The commission noted the case of Joyce Gilchrist, who was fired from the Oklahoma City Police Department's crime lab in 2001 amid accusations of falsifying evidence—she had worked on thousands of police investigations and testified in more than twenty capital cases, including, the commission noted, "at least 11 that resulted in executions." Gilchrist challenged her termination in court, claiming it was in retaliation for her reports of sexual harassment.

The commission bemoaned the lack of independence for forensics labs, which are often run and open to manipulation by local police departments.

The commission made a number of recommendations involving forensics, including that the state implement recommendations made by a 2013 commission, which included forming a committee that could "formulate a quality and enhanced training program for Crime Scene personnel [and that] [t]he program should be implemented in all Oklahoma police training academies" and repealing the exemption from licensing for latent fingerprint examiners and digital forensics analysts.

The commission also recommended that the state should "follow best practices with respect to certification of forensic experts," that the legislature should change the law to require biological evidence be kept 60 days after an execution, and that judges should be given forensics training,

On innocence protection, the commission noted that there had been 10 exonerations of death row inmates in Oklahoma since the death penalty was reinstated nationally in 1973, "placing it in the top five states with the highest number of individuals released from death row due to evidence of innocence," and pointed to a study that estimated that at least four percent of those sentenced to death in the U.S. are innocent.

There was not one cause of wrongful conviction, the commission stressed. "Instead, it is most often a combination of factors that implicate multiple components and actors within the criminal justice system, as well as external factors, such as community pressure to identify a perpetrator after a high-profile murder," the commission reported. "For the 10 men exonerated from Oklahoma's death row, multiple factors led to their wrongful conviction, including false confessions, mistaken eyewitness identification, false or misleading forensics, the use of jailhouse informants, official misconduct, and ineffective assistance of counsel."

Between 1989 and 2016, for example, of 103 people with mental illness or intellectual disability who were exonerated, 72 percent had made false confessions. The commission also warned of the problems of using jailhouse snitches.

It recommended that courts do more to permit "qualified expert testimony on the limitations and use of eyewitness testimony" when appropriate, to include directions to juries to consider such testimony in the state's uniform jury instructions, "best practices" for photo arrays and line ups, eliminating the show-ups, which the commission explains is "when a single suspected is presented," training law enforcement, prosecutors, and defense attorneys on the limitations of eyewitness identification, the recording of police interrogations in homicide cases (and a rebuttal presumption of inadmissibility if the entire interrogation is not recorded), "best practices" for law enforcement on interrogation methods, reliability hearings for and training on jailhouse informants, and legislation to provide adequate compensation for those exonerated from death row as well as to require such exonerations are applied to relevant government records immediately upon expungement.

The commission also looked at problems with prosecutors and the "limited checks on prosecutorial power." It noted a study that found one of the most common reversible errors in appeals was the "prosecutorial suppression of evidence that the defendant is innocent or does not deserve the death penalty," pointing to several cases in Oklahoma where evidence favorable to capital defendants was intentionally withheld.

"One study reports a correlation between reversal rates due to state conduct and the zealous use of the death penalty by counties," the commission pointed out. "The study found that '[t]he higher the rate at which a state or county imposes death verdicts, the greater the probability that each death verdict will have to be reversed because of serious error.'"

For prosecutors, the commission recommended they and their investigators receive regular, mandatory, training on the common causes for wrongful conviction, and regular training on their obligation to notify foriegn governments when charging non-citizens with capital crimes, and that they be required to allow open-file discovery at all stages of capital cases and to retain files on capital cases until 60 days after a death row inmate has been executed, died in custody, had his sentence commutes, or had been exonerated.

The commission also looked at public defenders, finding that they were often inadequately funded to vigorously defend capital cases. It recommended advisory guidelines on appointing defense counsel in capital cases, regular training for capital defense counsel "specific to the unique demands" of capital caes, compensation for employees of the Oklahoma Indigent Defense System (OIDS) equal to those of district attorneys' offices in corresponding countries, adequate compensation for conflict counsel in capital cases and a lift of a compensation cap far lower than in many other states, and that conflict counsel not be required to seek funding beyond statuatory caps directly from OIDS but should receive them from court funds in their county.

The commission also examined jury issues, and recommended guaranteeing the right to preliminary examination (voir dire) of individual jurors upon request by the state or the defendant as a way to mitigate problems like racial discrimination.

On the role of the judiciary, the commission recommended that judges receive regular training on capital trials, that the law be amended to prevent the failure to raise extra-record claims during a direct appeal from being used to deny such claims in post-conviction review, to require that counsel for death row inmates only be required to show good cause for discovery they request, and to amend the law to run capital direct appeals and state post-conviction proceedings consecutively, not concurrently.

The commission made a number of recommendations on death penalty eligibility related to the unconstitutionality of executing the mentally diabled. It recommended lowering the standard to prove a defendant's intellectual disability or mental retardation to a preponderance of evidence irrespective of the determination made by the judge or jury before or during the trial, amending the state's uniform jury instructions to "clarify that capital defendants must be permitted to attempt to establish their ineligibility for a death sentence on the basis of intellectual disability/mental retardation" if they've taken at least one IQ test that yielded a score lower than 76, amending the law to allow individuals other than the prison warden to raise the issue of competency of death row inmates, and prohibiting the state from executing someone who can be shown by a preponderance of the evidence to be incompetent or insane.

The commission also recommended that the state pardon and parole board be more open and not restricted to "individuals with experience in the criminal justice field," that that board publish substantive guidelines on clemency, that the board have guidelines for members who have a conflict of interest in evaluating a condemned inmate's petition for clemency to recuse themsevles, to permit condemned inmates to watch the presentation of their clemency petition via closed-circuit television, and that the pardon and parole board deliberate before voting on petitions of clemency.

The commission noted that Oklahoma has for years adopted the newest, untested methods of execution. It was, for example, the first state to establish lethal injection, and in 2015 became the first state to nitrogen asphyxiation as a method of execution.

The commission recommended that Oklahoma "adopt the most humane and effective method of execution possible," noting that currently that appeared to be the "one-drug (barbiturate) lethal injection protocol," that its execution protocol be reviewed continuously, that the Department of Corrections (DOC) "provide clear direction to department personnel involved in" executions, that the department require verification of lethal injection drugs as part of its written execution protocol, thorough training and evaluation of all government personnel involved in an execution, signed certifications from the DOC director at least 48 hours before any scheduled execution that the execution protocol has been appropriately followed, that inmates be notified at least three weeks in advance of what drugs would be used in their legal injections, and that an independent third party should conduct a "quality assurance review" after executions.

There has not been an execution in Oklahoma for more than two years, and the botched execution of Clayton Lockett in 2014 triggered a number of reviews. Only one execution took place in the state since then, that of Charles Warner, while he was appealing his case to the Supreme Court on the grounds that the use of midazolam constituted a cruel and unusual punishment. The court eventually ruled 5-4 against him.

You can read the entire report here.

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