Across the country, the death penalty system seems to be coming apart.
One sign of its unraveling is the extraordinarily high rate at which executions are now being botched, bungled, and mishandled. Another sign is the alarming number of false convictions in capital cases: Many innocent people have been, and continue to be, convicted and sentenced to death for crimes they did not commit.
As capital punishment’s problems mount, governors in states like Alabama, Arizona, Ohio, Oregon, and Tennessee have commuted death sentences, stopped executions entirely, and/or launched investigations into the death penalty system.
Last week, even Oklahoma—which has conducted more executions per capita than any other state over the past half-century—had its own reckoning with the death penalty’s deficiencies and injustices.
On Jan. 24, the Oklahoma Court of Criminal Appeals granted a request by the state’s new attorney general, Gentner Drummond (a Republican), to reverse its previous approval of a controversial plan to carry out 25 executions by the end of 2024. While the court did not halt all upcoming executions, it slowed the pace at which they can be carried out.
Two days later, Drummond seemed to acknowledge the death penalty’s unreliability by agreeing to appoint an independent counsel to review the murder conviction and death sentence of Richard Glossip. Glossip has been on Oklahoma’s death row for more than 20 years. The Court of Criminal Appeals decision delayed his execution until May 14.
Drummond’s announcement, as a report in the Intercept noted, “caught many Oklahomans by surprise, including activists, attorneys, and people on death row.”
This will not be the first time that the handling of Glossip’s case has been investigated. The story has already been laid out in a 343-page independent report commissioned in February 2022 by a bipartisan group of 35 Oklahoma legislators.
According to the Death Penalty Information Center, the team that carried out that investigation “reviewed 12,000 documents, interviewed witnesses and jurors, and uncovered evidence that had never been presented to a jury.”
Speaking about the Glossip case, one of the inquiry’s sponsors, Republican state Rep. Kevin McDugle, said, “We don’t seek convictions; we seek justice. If a defense attorney had done what the DA’s office did … charges would’ve been brought for obstructing justice.”
Stan Perry, who led the investigation, concluded, “No reasonable jury, hearing the complete record and the uncovered facts detailed in this report, would have convicted Richard Glossip of capital murder.”
Explaining his decision to launch a new investigation, Drummond said, “It is my responsibility to ensure that we are appropriately responding to all evidence that has been presented through Mr. Glossip’s conviction and incarceration. Circumstances surrounding this case necessitate a thorough review.”
Glossip’s case is just one of many death cases meriting such a review, and it is one reason why Drummond and the Court of Criminal Appeals were right to put the brakes on Oklahoma’s rush to carry out executions.
The execution spree was the brainchild of John O’Connor, Oklahoma’s past attorney general, who announced it in June 2022.
His plan would have ended the lives of 58 percent of inmates on the state’s death row, including those with severe mental illness, brain damage, and claims of innocence.
O’Connor, who lost to Drummond in last year’s Republican primary, claimed that proceeding with those executions would bring closure to the family members of the murder victims who “have waited decades for justice.” It would also, he said, honor Oklahomans who “overwhelmingly voted in 2016 to preserve the death penalty as a consequence for the most heinous murders.”
Those arguments did not persuade the editors of the Washington Post, who called O’Connor’s idea “grotesque.” Others criticized O’Connor for ignoring well-documented problems with Oklahoma’s death penalty process.
Critics also included former Gov. Brad Henry (a Democrat) and former federal magistrate judge Andy Lester, the co-chairs of an independent commission that found fault with Oklahoma’s execution procedures in 2017. Its report concluded 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 state, it said, could not ensure “that … those who are sentenced to death should receive this sentence only after a fair and impartial process that ensures they deserve the ultimate penalty of death. … These shortcomings have severe consequences for the accused and their families, for victims and their families, and for all citizens of Oklahoma.”
Henry and Lester’s group recommended more than 40 reforms touching all areas of Oklahoma’s death penalty system. It also urged state leaders not to carry out any executions “until significant reforms are accomplished.”
And Henry and Lester pointed out when O’Connor announced his plan that “virtually none of our recommendations have been adopted. Yet the state is barreling ahead with an unprecedented number of executions despite the numerous flaws in the implementation of the death penalty.”
Despite their warnings, Oklahoma kicked off its killing spree by carrying out three executions in 2022. It put James Coddington to death in August, followed by Benjamin Cole in October, and Richard Fairchild in November. And on Jan. 12, 2023, it killed Scott Eizember.
Here’s where Gentner Drummond enters the picture.
In one of his first acts as attorney general, he took the unusual step of being a witness at Eizember’s execution.
Before and after Eizember was put to death, Drummond met with leaders and staff from Oklahoma’s Department of Corrections. As he explained in his request to change Oklahoma’s execution schedule, while there he learned that “the current pace of executions is unsustainable in the long run, as it is unduly burdening the DOC and its personnel.”
Drummond also recognized an often neglected fact about America’s death penalty system: there is a serious and debilitating moral, emotional, and psychological toll on prison guards and others involved carrying out executions.
Last week’s events in Oklahoma do not mean that its death penalty will soon be ended or that the lives of most of those whose executions have been rescheduled will be spared. Still, it is significant when Oklahoma’s Court of Criminal Appeals and Attorney General Drummond—a law-and-order, tough-on-crime conservative in a deep-red state—take steps that acknowledge the death penalty’s flaws and the damage it does to those who carry it out.
What is happening in Oklahoma, which sits right in the middle of this country’s “death belt,” is another sign, as the journalist David Von Drehle puts it, that Americans everywhere are coming to terms with the fact that “our balky system of state-sanctioned killing simply isn’t fixable.”
