An execution in Oklahoma hasn’t taken place in nearly four years, and because of uncertainty surrounding the use of nitrogen gas, it remains unclear when scheduling for the 18 death row inmates who have exhausted their appeals will begin.
The Death Penalty Information Center, a nonprofit that studies and analyzes trends regarding capital punishment, released its annual report earlier this month. It indicated executions continue to take place less frequently as more jurisdictions in the U.S. either outlaw the practice or are unable to obtain the drugs necessary for lethal injections.
Eight states carried out a combined 25 executions in 2018, of which Texas contributed 13, in the fourth consecutive year with fewer than 30 people put to death nationwide. Oklahoma, once a regular fixture at the top of lists for numbers of executions, only imposed one new death sentence this year, with no county in the United States handing down more than two.
“A lot of the discussion on the death penalty focuses on executions, and in Oklahoma there’s good reason for that,” said Robert Dunham, executive director of the DPIC, which doesn’t take an official position on the subject. “But the best indicator is the number of new death sentences, and like the rest of the country, Oklahoma has had a sustained decline. What we’re seeing is that in most of the United States, the death penalty is disappearing.”
Dunham said eight states since 2007 abolished the death penalty either by legislative or judicial action, with Washington state becoming the 20th overall this year. He said that, plus local elections of reform-minded prosecutors in states such as Pennsylvania, appear to show citizens have less of an appetite for the practice.
“Local voters are more and more interested in criminal justice reform that works than in simply seeking the harshest punishments,” Dunham said. “It’s becoming more and more of a political liability for prosecutors to appear to be unnecessarily harsh in their charging and prosecution practices. That’s filtering across the country. It will be interesting to see how that plays out in Oklahoma.”
The Tulsa County District Attorney’s Office negotiated a plea agreement with Gregory Epperson, who faced the death penalty, that resulted in him receiving life without parole last week for the March 2017 strangulation of 19-year-old Kelsey Tennant. Epperson’s case was the first in the tenure of District Attorney Steve Kunzweiler, who won re-election to a second term in November.
Five other first-degree murder defendants in Tulsa County could receive death sentences if they take their cases to trial and are found guilty.
Tulsa County hasn’t sent anyone to death row since Raymond Johnson was sentenced to death in 2009 for killing 24-year-old Brooke Whitaker and her 7-month-old daughter. Statewide, Bethany resident Dustin Davison, whom an Oklahoma County jury convicted in February of fatally beating his ex-girlfriend’s 2-year-old son, is the only person sentenced to death this year.
Current delay amid lengthy work on nitrogen gas protocol
In March, Department of Corrections Director Joe Allbaugh announced his agency would use nitrogen gas as the primary method of execution, citing persistent challenges in obtaining drugs for lethal injections.
The Oklahoma Attorney General’s Office in October 2015 requested an indefinite stay of executions after becoming aware the DOC received an incorrect drug for the lethal injection of Richard Glossip. Charles Warner, the last person executed, died by a lethal injection combination in January 2015 that included the same incorrect drug, according to an autopsy report first obtained by The Oklahoman.
Previously, the 43-minute execution of Clayton Lockett with midazolam brought international criticism, with one official involved later calling the matter “a bloody mess” after it went awry.
In May 2016, a multicounty grand jury said state officials were “careless” and that secrecy on finding drugs played a role in Warner and Glossip getting allocated a drug that wasn’t in the DOC’s lethal injection protocol.
The grand jury’s months of work saw resignations and retirements of multiple high-ranking officials, including former DOC Director Robert Patton, Gov. Mary Fallin’s then-general counsel Steve Mullins and Oklahoma State Penitentiary Warden Anita Trammell.
Since then, jurisdictions in Oklahoma have only added four people to death row.
A bipartisan Death Penalty Review Commission released a nonbinding report last year asking for state officials to implement recommendations aimed at mitigating the risk of wrongful convictions and mistakes while executions occur.
However, outside of basic monthly status reports the attorney general’s office files with the Court of Criminal Appeals, state officials are virtually silent on the issue. Alex Gerszewski, a spokesman for Attorney General Mike Hunter’s office, said staff are still at work with the DOC on policies.
Attorneys representing inmates who filed a federal lawsuit over the DOC’s execution policies have called the nitrogen gas method, which passed through the Legislature, “experimental” amid ample evidence of Oklahoma officials’ mistakes.
“We’re still working in coordination with the Attorney General to develop a protocol for nitrogen hypoxia. That process is ongoing,” DOC spokesman Matt Elliott said this week. “We will update the public once it is complete, and the state of Oklahoma can resume the process of obtaining justice under the law for the victims of inmates sentenced to death.”
Dunham said Alabama, Mississippi and Oklahoma are the only states that chose to adopt nitrogen gas as an alternative method. In Alabama, he said prisoners in a federal lawsuit there opted to die by nitrogen hypoxia, an untested method, because of “clear evidence that the use midazolam would result in a torturous execution.”
“We don’t know how the states that have authorized nitrogen gas are going to carry it out,” Dunham said. “We don’t know if there’s going to be a gas chamber or a death mask. And we don’t know what safeguards states are going to put in place to make sure prison personnel are not, because of incompetence or mistake, exposed to the gas and have themselves put in danger.
“And I think the fact that neither Oklahoma nor Alabama has yet to come up with a protocol for gas executions tells us the choice of nitrogen was not as simple as its proponents have suggested.”
Allbaugh in March initially projected having “something of a preliminary fashion” to work with within four months of his press conference with Hunter.
But the DOC later asserted it never discussed or set a hard deadline to have a protocol ready, saying this summer that it needs to ensure the protocol will withstand court challenges.