A State With One of the Highest Execution Rates Considers a Moratorium
Oklahoma state Rep. Kevin McDugle has done a surprising service for the citizens of his state. McDugle is a longtime death penalty supporter, but he is giving Oklahomans the opportunity to look beyond their general views about that punishment and consider the way it is carried out.
McDugle’s journey from death penalty supporter to death penalty skeptic is one he hopes others will emulate when they look closely at the glaring defects in the death penalty process.
Last week, he convened a hearing of the House Judiciary Criminal Committee to hear testimony about the risk of executing an innocent person and the problem of botched executions. Over the course of three and a half hours, the committee heard from current and former officials involved in the execution process, a death row exoneree, and death penalty experts.
The question McDugle posed to the committee was whether it should recommend that the state, which has put more people to death than any state except Texas, should adopt a moratorium on executions. Not so long ago, that would have been unthinkable in Oklahoma, but now McDugle wants to ensure that everyone knows what is at stake if the state continues to put people to death.
McDugle’s death penalty activism arises from his involvement in the case of Richard Glossip. Glossip was convicted and sentenced to death for his alleged role in the 1997 murder for hire of Barry Van Treese. The man who actually committed the violent killing, Justin Sneed, pleaded guilty and pointed the finger at Glossip as the mastermind.
As the Innocence Project summarized the case:
Glossip had no criminal history and was only implicated in the crime after detectives suggested his name to Mr. Sneed six times. Mr. Glossip’s trial was tainted by prosecutorial misconduct, a leading cause of wrongful conviction. In an extraordinary step, Oklahoma Attorney General Gentner Drummond has conceded errors in Mr. Glossip’s case and asked the (Supreme Court) to overturn his conviction, and now supports his clemency and opposes his execution.
McDugle explains that he got involved in the Glossip case when a friend called his attention to the fact that Glossip might actually be innocent.
“To be honest with you,” McDugle told an interviewer last April, “I didn’t believe it, because you hear a lot of people in prison who are innocent, right? But … even if 10 percent of what they’re saying is true, we really could have a guy in Oklahoma that’s innocent on death row. So that’s when I got started, and that’s when I started digging in a little bit more.”
When asked if he had any doubts about Glossip’s innocence, McDugle replied:
They can show me nothing that ties him, and the one thing they have is a witness that says that he was the one that told him to commit the murder. Guess who that witness was? The actual murderer that beat him with a baseball bat. He’s the witness, and what did he get for that testimony? He got off of death row himself and got life in prison.
“They have zero proof, outside of that, that can tie Richard Glossip to giving him money, splitting money with him. Zero,” McDugle says, “so I have zero doubts that that they were wrong.”
As McDugle told his fellow members of the House committee, “We have people on death row who don’t deserve the death penalty. The process in Oklahoma is not right. Either we fix that, or we put a moratorium in place until we can fix it.”
Echoing McDugle, Judge Andy Lester, a former federal magistrate judge, told the committee that the Glossip case shows that “whether you support capital punishment or oppose it, one thing is clear. From start to finish, the Oklahoma capital punishment system is fundamentally broken.”
“It is so broken,” Lester said, “that we cannot know whether someone who has been condemned is actually deserving of the ultimate penalty the state can impose.”
Judge Lester had chaired an independent review commission that studied the capital punishment process in Oklahoma after a series of botched executions in that state. In 2017, it unanimously recommended that the state halt all executions until the problems of false testimony, unreliable eyewitnesses, prosecutorial misconduct, and the misuse of jailhouse informants are fixed.
So far, none of the commission’s recommendations have been implemented.
Another witness before the McDugle’s House committee, Adam Luck, the former chair of the state’s pardon and parole board, focused its attention on the very real prospect of executing an innocent person. He told them that he was haunted by the well-documented error rate in capital cases across the country.
In Oklahoma alone, there have been 11 exonerations in the last half-century.
Luck testified:
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. … 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? 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.
Robert Dunham, former executive director of the Death Penalty Information Center, urged McDugle’s committee to learn from the experience of other states. “Every state,” Dunham said, “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 pointed out that exonerations have occurred in a total of 118 counties across 30 different states.
Still another witness shifted the focus and urged the committee to pay attention to Oklahoma’s record of botched executions. Justin Jones, a former head of Oklahoma’s Department of Corrections, said that the state’s execution protocol is not foolproof. In addition, he reminded the committee that the prison staff charged with carrying out executions are “some of the lowest-paid state employees in government. It just takes one [person] who doesn’t do their job properly” and an execution can go horribly wrong.
Jones agreed with other witnesses on the need for a moratorium on executions. If Oklahoma continues to put people to death, Jones said, “I’m guaranteeing you that you’re going to have other botched executions.”
In the past, arguments about the risk of executing the innocent and breakdowns in the death penalty system have led other states to impose moratoria on executions.
While McDugle acknowledges that the prospect of passing a death penalty moratorium in Oklahoma’s conservative-dominated Legislature is not great, he hopes that the issue will force death penalty supporters to come to terms with the fatal flaws that plague the state’s death penalty system.
Like the late Justice Thurgood Marshall and other opponents of capital punishment, McDugle is sustained by a democratic optimism. Whether or not he succeeds in his drive for a moratorium, he believes that if the people of Oklahoma really knew about the death penalty, they would find it to be unreliable and unjust. And they would reject it.
