Oklahoma lawmakers on Thursday discussed the possibility of enacting a moratorium on capital punishment in the state as concerns about innocence and botched executions continue to mount.
Death penalty experts, current and former officials, and a death row exoneree all testified at the three-and-a-half-hour hearing in the Republican-led House Judiciary Criminal Committee. State Rep. Kevin McDugle (R), who has said he does not oppose the death penalty but has concerns about how it is carried out, called for the hearing.
McDugle has become an outspoken supporter of Richard Glossip, a man who has survived nine execution dates and whose killing has been temporarily blocked by the U.S. Supreme Court. Each time Glossip was scheduled to be killed, his execution was delayed either because of overwhelming evidence of his innocence or because of issues with the state’s method of killing.
McDugle filed a bill in 2021 to create a death penalty conviction integrity unit under the state’s pardon and parole board, but the bill died in the legislature. There is currently no moratorium bill under consideration, but lawmakers can introduce one when the next session begins in February 2024.
Much of Thursday’s hearing focused on the risk of killing an innocent person. Since 1973, at least 185 people have been exonerated from death row, testified Robert Dunham, the director of the Death Penalty Policy Project. “That’s one exoneration for every 8.1 executions. That’s an astonishing failure rate.”
“Every state believes that its state court process is exceptional and has adopted safeguards sufficient to prevent convicting the innocent, but over and over, in state after state, and county after county, that’s been proven not to be the case,” Dunham said, noting that exonerations have occurred in 118 different counties and 30 different states.
Adam Luck, the former chair of the state’s pardon and parole board, testified that the prospect of signing off on the killing of an innocent person led him to conclude that he could not support the death penalty. Luck was appointed to the board by Gov. Kevin Stitt (R) in 2019, while an execution pause was in place. When the state resumed executions in 2021, he began grappling with the national death row conviction error rate of 12.3%.
“I knew that if I was going to support the death penalty, if I was going to make these decisions with any amount of intellectual integrity, I would need to make my peace with this number,” Luck said.
He thought about whether there was a number of innocent people he would be willing to let die so that the state could keep the death penalty. If so, he thought, what if it was someone he knew?
“Would I be OK if it was my friend or family member? Ultimately, was I willing to be the one innocent person executed so we, as a state, could continue executing the guilty?” Luck said. “Simply put, I realized I could not support the death penalty in any case, because I could not support the undeniable, unchangeable risk of executing an innocent person.”
During his time on the pardon and parole board, Luck voted in favor of clemency in each of the five death penalty cases that came before him. In several cases, he was the only member of the panel to vote against execution. Several prosecutors attempted to force Luck to recuse himself from considering various clemency requests. In January 2022, Luck resigned from the board, implying in his resignation letter that he was doing so at the governor’s request.
Oklahoma has carried out the most executions per capita of any state in the U.S. since the Supreme Court reinstated the death penalty in 1976. Since then, there have been 11 exonerations out of Oklahoma. In 2014, Oklahoma carried out the high-profile botched execution of Clayton Lockett, who writhed in pain after being injected with a lethal combination of drugs. The next man to be killed was Charles Warner, who was later revealed to be executed with the wrong drug. Glossip was supposed to be killed next, but his execution was called off at the last minute because the state still did not have the correct drug.
After the series of high-profile screw-ups, the state agreed to a moratorium in 2015. An independent bipartisan death penalty review commission advised in 2017 that the moratorium be extended until the state enacted more than 40 recommendations related to forensics, law enforcement techniques, prosecution and defense policies, death penalty eligibility, clemency and the execution process.
In the years since the report, Oklahoma “has implemented virtually none” of the recommendations, Andy Lester, a former federal magistrate judge and co-chair of the commission, testified at Thursday’s hearing.
“Whether you support capital punishment or oppose it, one thing is clear: From start to finish, the Oklahoma capital punishment system is fundamentally broken,” Lester said.
Oklahoma resumed executions in 2021, using the same drug protocol used in Lockett’s botched killing. The first man to be killed after lifting the moratorium, John Grant, vomited and convulsed as he died. Although the state claimed Grant’s execution occurred “without complication,” his autopsy revealed signs of pulmonary edema, a condition where the lungs fill with fluid, creating the feeling of suffocating or drowning.
Justin Jones, a former head of Oklahoma’s Department of Corrections, warned on Thursday that the state’s execution protocol leaves plenty of opportunity for error. “I’m guaranteeing you that you’re going to have other botched executions,” he said.