The Oklahoma Death Penalty Review Commission
recommended the continuation of a moratorium on the death penalty "until significant reforms are accomplished," Brad Henry, commission co-chairman and former Oklahoma governor, said Tuesday. The current halt on executions was put in place
in October 2015.
This is the overarching recommendation of more than 40 announced by the bipartisan group, which has spent more than a year and a half reviewing every part of the capital punishment process, from arrest to execution. The recommendations are detailed in a 294-page report
published in an effort to "ensure a fair and impartial process."
The report addresses "systemic problems in key areas such as forensics, innocence protection, the execution process and the roles of the prosecution, the defense council, the jury and the judiciary," Henry said, adding that the commission members were "all disturbed by the volume and seriousness of the flaws involved in Oklahoma's capital punishment system."
That includes his belief "that it's very likely that at some point, Oklahoma has executed an innocent person. I don't know that to be true, and I don't think we'll ever know."
Commissioner Robert Alexander Jr., a trial lawyer, agreed, saying there are systemic flaws that could allow for it.
Alexander said he was shocked to learn that eyewitness identification and forensic procedures are not reliable, based on the facts uncovered by the commission's investigation.
"Two of the methods of conviction, or tools used in conviction that would intuitively be the most reliable, we found to be the most unreliable," Alexander said. The report recommends implementing forensic reforms that were adopted in 2013 but have not been put into practice. In addition, it calls for a strengthening of the qualification process for forensic experts.
"The commission is urging that the state step back and take a careful look at the way in which it administers the death penalty to ensure that the state doesn't make mistakes," said Robert Dunham
, executive director of the Death Penalty Information Center. Dunham was not a member of the Oklahoma commission.
'Most humane and effective method'
The commission also recommended the use of a single lethal barbiturate protocol, rather than a combination of two or three drugs, saying this is the "most humane and effective method of execution possible." It did not identify which single drug should be used but noted that the state's Department of Corrections does not have pharmacy access to pentobarbital or thiopental, both of which fall under the barbiturate umbrella. The report also noted that Oklahoma has never performed an execution using a single-drug formula.
Although the report did not focus on a single execution, the review of the process began in the wake of the 2014 botched execution of Clayton Lockett. Having been sentenced to death for the 1999 shooting of Stephanie Nieman, Lockett was scheduled to die by a three-drug lethal injection cocktail on April 29, 2014, at the Oklahoma State Penitentiary in McAlester. Thirty-three minutes after the administration of the first drug began, the execution was halted.
"The doctor checked the IV and reported the blood vein had collapsed, and the drugs had either absorbed into tissue, leaked out or both," according to a previously released timeline. Lockett died of a heart attack 43 minutes after the execution began.
The three-drug cocktail that was used in Lockett's execution, for the first time in Oklahoma, included a drug called midazolam. Midazolam, which has been implicated in a number of botched and drawn-out executions, does not share the same anesthetic qualities as barbiturates, which the Oklahoma commission described as the most humane method.
"Midazolam is a sedative. It makes you relax, but it has no pain-blocking qualities," said Dr. David Waisel, an anesthesiologist at Harvard Medical School who also researches ethical issues such as informed consent and capital punishment.
Waisel said that a key concern with the lethal injection cocktail is that, by stopping movement, muscle relaxants can hide the possibility that an inmate isn't fully sedated by midazolam. The third drug, a heart-stopping substance called potassium chloride, can be torturously painful.
"It has been described as putting fire in your veins," said Waisel, who was not part of the commission.
In calling for reforms to the system, Henry said that more resources are needed to make sure the decision to give someone the death penalty is truly fair and impartial. "If you want to do this, it must be done right. Here are ways to do this," he said, referring to the more than 40 recommendations.
The moratorium recommendation comes one day after Arkansas executed two men
on the same night. That state's plans to execute eight death row inmates in 11 days using lethal injection have stirred debate over the death penalty.
So far, three of the Arkansas inmates have been executed, and four executions have been put on hold. Another execution is scheduled for this week
"What this commission (in Oklahoma) has done stands in stark contrast to what we're seeing in Arkansas," Dunham said.