”Many of the findings of the Commission’s year-long investigation were disturbing and led Commission members to question whether the death penalty can be administered in a way that ensures no innocent person is put to death.”

That was the conclusion of the Oklahoma Death Penalty Review Commission when it issued the results of its year-long study of the state’s death penalty scheme last month.

Their recommendation: ”Due to the volume and seriousness of the flaws in Oklahoma’s capital punishment system, Commission members recommend that the moratorium on executions be extended until significant reforms are accomplished.”

What’s more, the report also declares that, “A review of the evidence demonstrates that the death penalty, even in Oklahoma, has not always been imposed and carried out fairly, consist-ently, and humanely, as required by the federal and state constitutions.”

Executions in Oklahoma have been on hold since 2015, while a grand jury investigated the execution of Charles Warner, who was given the wrong drug in his lethal injection, and the near-execution of Richard Glossip, whose cocktail also contained the wrong drug. Those mistakes occurred after the horribly botched 43-minute execution of Clayton Lockett in 2014. The grand jury report, released in May 2016, was scathing in its criticism of how state officials had handled its executions.

The 11-member bipartisan commission looked at all aspects of the Oklahoma death penalty system, from arrest to conviction to execution.

The nearly 300-page report comes out less than six months after Oklahomans overwhelmingly approved a measure to enshrine their death penalty law in the state constitution. Sixty-six per-cent of voters passed State Question No. 776, which had four provisions :
· The Legislature is expressly empowered to designate any method of execution not prohibited by the United States Constitution.
· Death sentences shall not be reduced because a method of execution is ruled to be invalid.
· When an execution method is declared invalid, the death penalty imposed shall remain in force until it can be carried out using any valid execution method, and
· The imposition of a death penalty under Oklahoma law—as distinguished from a method of execution—shall not be deemed to be or constitute the infliction of cruel or unusual punishment under Oklahoma’s Constitution, nor to contravene any provision of the Oklahoma Constitution.

The commission acknowledged the strong support Oklahomans have for the death penalty, but said, “Nevertheless, it is undeniable that innocent people have been sentenced to death in Oklahoma. And the burden of wrongful convictions alone requires the systemic corrections recommended in this report.” In addition to its recommendation that the current moratorium be extended, the report made 45 additional recommendations that it said would significantly improve how the state carries out executions.

Criminal defense attorney (and DPF board member) Robert M. Sanger points out that “This is the same conclusion that was reached by the Illinois Commission in 2002. They said that, even if all of their 85 proposed changes were made, there was no guarantee that an innocent person would not be executed. I don’t think this is a contested fact based on the evidence but, of course, the pro-death people want to play it down. Justice John Paul Stevens made the point in Baze v. Rees, in his book, and in his interview (with Sanger in February 2016). Humans just don’t get things right.”

Ten people have been exonerated from Oklahoma’s death row. Oklahoma executes more inmates per capita than any other death penalty state. It currently has 47 people on death row.

At a news conference, Tulsa World reports that commission co-chairman Andy Lester, a lawyer, referred to the 10 exonerees saying, “If one slipped through, just think how horrible that would be. It’s bad enough that somebody gets wrongfully convicted. It’s possible to recreate a life after a wrongful conviction, but it is not possible after a wrongful execution.”

Former Superior Court Judge Frank J. Ochoa, who retired after 32 years on the Santa Barbara trial court bench and is now of counsel to Sanger Swysen & Dunkle, goes further, saying, “It is impossible to insure that mistakes won’t be made in our criminal justice system, including in death penalty cases. This is true irrespective of the good intentions and level of competence of the participants in the process. It is a human process and enjoys great benefits from that fact. But is also creates a circumstance where error is not merely possible, it is inevitable. The death penalty is the only criminal case result which cannot be undone. There are no means to rectify the error or to compensate the person aggrieved by the mistake.”

As a result, Judge Ochoa says he has “developed a position in blanket opposition to the death penalty.”

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