Oklahoma’s history with capital punishment

OKLAHOMA CITY - Capital punishment in present-day Oklahoma dates back to Indian Territory and, actually, more than 200 years ago to the Louisiana Purchase in 1804, according to an article by Von Russell Creel published in “The Encyclopedia of Oklahoma History and Culture.” (www.okhistory.org)

After the United States completed the large land acquisition (which included present-day Oklahoma) from  France under the leadership of President Thomas Jefferson, Congress ruled that the legal codes and criminal laws of the United States also pertained to the new territory. Creel’s article said that in 1889, Congress established the first fed- eral court in Indian Territory at Muskogee; however, it did not have jurisdiction in capital offense cases. Until 1895, when Congress gave the Muskogee court “exclusive jurisdiction,” prosecution of Indian Territory crimes went to federal courts in Arkansas, Kansas and Texas.

“However, the U.S. District Court for the Western District of Arkansas, presided over by notorious Judge Isaac C. Parker, was Indian Territory’s most famous criminal venue, with seventy-nine men going to the gallows under sentence of his court,” Creel wrote. His article stated that, “One man was hanged under sentence of the Oklahoma Territory courts, and nine men and one woman went to the gallows under sentence of the Indian Territory court.” Then from statehood, in 1907, until 1915, “executions were by hanging in the county of conviction.” In that eight-year period, it’s estimated that about six men – all convicted of murder – were hanged.

GOV. LEE CRUCE

Oklahoma’s second governor, Lee Cruce, commuted every death sentence imposed during his four-year administration from 1911-1915, the online Death Penalty Information Center documented. In addition, author Linda D. Wilson published a short article on Cruce in “The Encyclopedia of Oklahoma History and Culture” noting specifically that he commuted the sentences of 19 criminals to life in prison rather than impose the death penalty. Executions resumed when Oklahoma’s third governor, Robert Lee Williams (a licensed minister), took office. During his first year is when the state introduced electrocution as a method of execution, replacing the hangman’s noose, wrote Creel in his article.

Williams, before serving as governor, was elected in 1907 to the Oklahoma Supreme Court. He was the first Chief Justice, noted L. David Norris in “The Encyclopedia of Oklahoma History and Culture.” “In 1915 Henry Bookman, convicted in McIntosh County for murder, was the first person to be electrocuted in Oklahoma. The first execution for an offense other than homicide occurred in 1930. James Edward Forrest was put to death for rape, and subsequently, there were executions for robbery with firearms and for kidnapping.

“In the late 1920s and during the 1930s there were as many as three on the same day. In 1972, when the U.S. Supreme Court declared the death penalty, as then administered, unconstitutional, eighty-two persons, all-male, had died in Oklahoma’s electric chair,” Creel wrote. 

DEATH PENALTY TEMPORARILY UNCONSTITUTIONAL

It was a complicated ruling, notes the website constitutioncenter.org, but on June 29, 1972, the U.S. Supreme Court ruled in Furman v. Georgia that enforcing the death penalty in three particular cases was unconstitutional. The Furman decision put a four-year hold on all pending executions until more guidance came from a court challenge, according to the Constitution Center website. It went on to say that “In 1976, in a series of decisions from Gregg v. Georgia, the Court confirmed that capital punishment was legal in the United States, but under limited circumstances ... In later years, the Court has excluded certain classes of people from capital punishment, including the mentally handicapped and juveniles.”

GOV. DAVID BOREN

In July 1976, the Associated Press reported that Gov. David Boren issued an executive order calling a special legislative session (at the cost of about $30,000 for the five-day session) to enact a new death penalty law for Oklahoma. Ultimately, the Supreme Court had ruled in Furman v. Georgia that specific death penalty statutes were unconstitutional, and Oklahoma was one of the states that needed statute revisions. The AP article from 1976 reported that Oklahoma’s statutes were deemed unconstitutional because they called for “mandatory” punishment of death for a limited number of crimes. Death penalty laws were upheld in other states that allowed judges and juries to decide a convicted person’s sentence.

Boren reportedly did not want to wait until the regular legislative session, which was about six months away, because, “I believe very firmly ... the death penalty does serve as a deterrent to crime ... we simply cannot go six months without a death penalty statute, in my opinion,” he said at the time. The legislators overwhelmingly voted in favor, 45 to 1 in the Senate, and 93 to 5 in the House, Creel reported in his article for the Oklahoma history encyclopedia. About 14 years after the new statutes were written, the first execution was carried out. Creel wrote that from September 1990 through March 2004, 73 people died from lethal injection.

OKLAHOMA FIRST TO ADOPT LETHAL INJECTION

The Death Penalty Information Center reports that in 1977 Oklahoma was the first state and the first jurisdiction in the world to adopt lethal injection as its method of execution. Charles Troy Coleman was executed on Sept. 10, 1990, after being convicted in Muskogee County for first-degree murder, the Oklahoma Department of Corrections records show. On Dec. 16, 2010, Oklahoma became the first American state to use pentobarbital in the execution of John David Duty, according to the Death Penalty Information Center.

2014 - CLAYTON LOCKETT

Oklahoma made state, national and international headlines after what was commonly called the “botched execution” of Clayton Lockett. Tulsa World journalists (at the time) Cary Aspinwall and Ziva Branstetter reported that, “Oklahoma’s botched execution Tuesday became the subject of intense international scrutiny as questions emerged on whether the use of an unproven drug protocol led to an inhumane death for inmate Clayton Lockett. President Barack Obama weighed in on the controversy, saying through a spokesman that the execution fell short of humane standards.”

Aspinwall and Branstetter reported that Lockett, along with two accomplices, abducted four people in a home invasion in June of 1999 and drove them to a remote farm road in northern Oklahoma. Lockett reportedly admitted to law enforcement officers that he killed one of the women by shooting her. “Sentenced to death, Lockett was set to be executed in April 2014. The execution went horribly wrong, lasting for 43 minutes and resulting in what the prison’s warden described as ‘a bloody mess.’ In its wake, Oklahoma drew national and international condemnation.

“For months before the execution, a legal battle roiled over the state’s plans to use the sedative midazolam, and it sparked a constitutional showdown between Oklahoma Gov. Mary Fallin and the state’s Supreme Court. The court eventually backed down and allowed Lockett’s execution to proceed without a full hearing into whether inmates are entitled to more information about the drugs intended to kill them,” reported Aspinwall and Branstetter.

Lockett’s official cause of death on April 29, 2014, was listed as a heart attack after the lethal injection was said to have been carried out incorrectly, reports death penalty information from Ballotpedia. Journalists Aspinwall and Branstetter also reported that, “Oklahoma’s remaining death row inmates filed a challenge to the state’s execution protocol in the wake of Lockett’s death. The lawsuit ended up before the U.S. Supreme Court (Warner v. Gross and later called Glossip v. Gross), which ultimately ruled in 2015 that Oklahoma could continue using midazolam in executions.” 

NOVEMBER 2016 BALLOT – SQ 776

Official results from the Oklahoma State Election Board show that State Question 776, also informally known as the Oklahoma Death Penalty Amendment, which was on the Nov. 8, 2016, ballot was approved by 66.36% of ‘yes’ votes to 33.64% of ‘no’ voters. It was a legislative referendum and essentially allowed citizens to weigh in on whether the death penalty was deemed “cruel and unusual punishment.” Oklahoma executions had been put on hold in October 2015, due to controversy surrounding lethal injection protocols, even though the death penalty had been ruled legal. The majority of voters spoke at the polls in 2016, and by approving the state question said the death penalty was an acceptable form of punishment.

A journalist with The Oklahoman, Kyle Schwab, reported at the time that, “Supporters wanted to protect the death penalty and ensure capital punishment still would be available even if the current method of lethal injection is found to be unconstitutional ... “The question stated the Legislature is expressly empowered to designate any method of execution not prohibited by the U.S. Constitution. It also said death sentences shall not be reduced because a method of execution is ruled to be invalid,” Schwab wrote.

Opponents of the question were concerned about costly legal challenges and government checks and balances, Schwab said. Information from the Ballotpedia website reports that State Question 776 placed the following provisions into the Oklahoma Constitution’s bill of rights:

• gives the legislature, rather than the judicial or executive branches of government, the authority to provide for any method of administering the death penalty not prohibited by the U.S. Constitution
• prevents any death sentences already passed down from being prevented due to successful legal challenges to or changes in the method used by the state for execution, requiring death sentences to remain in force until a legal method for execution is determined
• declares that the death penalty, as such, cannot be established as cruel and unusual punishment, independent from any rulings about specific methods of execution.

Oklahoma’s previously overturned death penalty law, and its death penalty law in effect as of 2016, were designed to provide specific methods for execution: electrocution and lethal injection, respectively. State Question 776 established the death penalty as legal and as a right of state residents independent from the method used. The Death Penalty Information Center web- site summed up the approval of State Question 776 by saying the state’s death penalty was “constitutionalized” and it removed the authority of the state courts to declare that it is cruel and unusual punishment or a violation of any provision of the state constitution.

However, although possibly “constitutionalized,” Article II Section 9A in the state Constitution does allow a legislative amendment or repeal by statute, initiative or a referendum of that measure. This is where Representative Dunnington’s proposed bill in the current legislative session could possibly impact the results of 2016’s approved State Question 776.

NO EXECUTIONS SCHEDULED

The Oklahoma Department of Corrections website reports that as of December 2019, no executions have been scheduled. An article posted at the Death Penalty Information Center reports that Oklahoma now joins nearly two-thirds of death penalty states (18 of 29) that have not carried out any executions in at least five years. The article, posted on the web- site on Jan. 15, 2020, states that, “As part of an agreement in a fed- eral lawsuit challenging the state’s execution procedures, Oklahoma may not seek execution dates for at least five months after a new execution protocol is adopted.

“In 2018, the state announced plans to use nitrogen gas, rather than lethal injection, in executions, but no official protocol has been adopted.” Methods of execution approved in Oklahoma are injection, electrocution or firing squad. Is capital punishment legal and a right of state residents, as asserted by the majority of voters in 2016? Or, should state statutes be amended to remove the death penalty as an option for punishment? The second regular session of Oklahoma’s 57th Legislature will convene today, Feb. 3.