The Report of the The Report Oklahoma Death Penalty Review Commission Review Penalty Oklahoma Death The Report of the Oklahoma Death Penalty Review Commission OKDeathPenaltyReview.org The Report of the Oklahoma Death Penalty Review Commission The Oklahoma Death Penalty Review Commission is an initiative of The Constitution Project®, which sponsors independent, bipartisan committees to address a variety of important constitutional issues and to produce consensus reports and recommendations. The views and conclusions expressed in these reports, statements, and other material do not necessarily reflect the views of members of its Board of Directors or its staff. For information about this report, or any other work of The Constitution Project, please visit our website at www. constitutionproject.org or e-mail us at [email protected]. Copyright © March 2017 by The Constitution Project ®. All rights reserved. No part may be reproduced, stored in a retrieval system, or transmitted, in any form, or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of The Constitution Project. Book design by Keane Design & Communications, Inc/keanedesign.com. Table of Contents Letter from the Co-Chairs .........................................................................................................................................i The Oklahoma Death Penalty Review Commission ..............................................................................iii Executive Summary.................................................................................................................................................. vii Findings and Recommendations ........................................................................................................................ix Chapters 1. Overview .......................................................................................................................................................................... 1 2. Forensics ........................................................................................................................................................................13 3. Innocence Protection.............................................................................................................................................41 4. Role of the Prosecution .......................................................................................................................................71 5. Role of the Defense ...............................................................................................................................................89 6. Jury Issues ................................................................................................................................................................105 7. Role of the Judiciary ........................................................................................................................................... 131 8. Death Eligibility .................................................................................................................................................... 141 9. Clemency ...................................................................................................................................................................161 10. Execution Process ..............................................................................................................................................175 Appendices Appendix I: Proportionality, Cost, and Accuracy of Capital Punishment in Oklahoma ...............199 Appendix IA: Race and Death Sentencing for Oklahoma Homicides, 1990-2012 ..........................211 Appendix IB: An Analysis of the Economic Costs of Capital Punishment in Oklahoma ..........223 Acknowledgments .....................................................................................................................................................................271 A Letter from the Co-Chairs For a period spanning over a year, the Oklahoma Death Penalty Review Commission, a group of eleven Oklahomans of diverse backgrounds, worked hard to study virtually all aspects of the death penalty, from initial arrest and interrogation through the execution stage, as implemented in the United States and, in particular, in Oklahoma. Commissioners gathered data, reviewed scholarly articles, commissioned studies, and conducted interviews. They met, discussed, debated, and reached consensus, and the following report and its recommendations are the result of the Commission’s work. Commission members included five women and six men. They came from both urban and rural communities. They included Republicans and Democrats, prosecutors, and defense attorneys, individuals who have served in each of the three branches of government, law school professors and law school deans, victims’ advocates, and advocates for Native Americans. The Commission met ten times for intense, full-day meetings. Commission members heard from experts, both from around the country and throughout Oklahoma. A full list of all who made presentations, provided expert guidance, or otherwise assisted the Commission through logistical support appears in the Acknowledgements section following the report. We are especially grateful to the following individuals who met with the Commission to discuss, in detail, their work as it relates to Oklahoma’s death penalty: Shannon Butler, Charles Curtis, Michelle Feldman, Patti Palmer Ghezzi, Steve Kunzweiler, Robert Nigh, David Prater, Robert Ravitz, Craig Sutter, and Nancy Vollertson. All were helpful. All contributed to the report. We wish to thank them for the significant time and effort they spent to help the Commission better understand the issues, their work, their areas of expertise, and their perspectives. Commission meetings, however, constituted only a fraction of the work Commissioners undertook. Some met with various public officials. Others interviewed experts. All read and studied volumes of information. Commissioners reviewed, edited, and re-edited the text of the report. Commissioners arrived at every meeting well-prepared to discuss, to advocate, to compromise, and, ultimately, to reach consensus. State and local agencies throughout Oklahoma provided helpful data and other assistance. These include the Office of Governor Mary Fallin, the Oklahoma Supreme Court, the Oklahoma Court of Criminal Appeals, the Oklahoma Attorney General, the Office of the Speaker of the Oklahoma House of Representatives, the Office of the President Pro Tempore of the Oklahoma State Senate, the Oklahoma Department of Corrections, the Oklahoma Indigent Defense System, the Oklahoma District Attorneys Council, several district attorneys, district court clerks, sheriffs and police departments, and many others. Without their help, the Commission’s undertaking would have been impossible. i The Report of the Oklahoma Death Penalty Review Commission A number of individuals and entities assisted the Commission with important contextual research. Their work, which analyzes rates of error, costs, and disproportionate application of the death penalty, appears in the appendix. Many of them provided this assistance on a pro bono basis. The Commission is particularly thankful to the following individuals and entities: the law firms Norton Rose Fulbright and King & Spalding, Dr. Peter Collins, Dr. Matthew Hickman, and Professor Robert Boruchowitz, Melissa Vincent and the firm 9Tribe, and Professors Glenn Pierce, Michael Radelet, and Susan Sharp. Several institutions made their facilities available for Commission meetings. These include Oklahoma City University School of Law, the University of Oklahoma College of Law, Langston University, the Oklahoma State Regents for Higher Education, and the law firms Spencer Fane LLP and Crowe & Dunlevy. The Constitution Project (TCP) was critical to the Commission’s work. Without TCP, the Commission could not have fulfilled its mission. TCP is a Washington, D.C., bipartisan, nonprofit organization which fosters consensus- based solutions to the most difficult constitutional challenges of our time. TCP supplied all staff and researchers to the Commission throughout its work. Virginia “Ginny” Sloan, the President and Founder of TCP, made certain the Commission had all the help and resources it needed. Madhuri “Madhu” Grewal, Senior Counsel for The Constitution Project, tirelessly worked for the Commission from start to finish. TCP staffers Alexa O’Brian, Matilde Carbia and Ryan Kent also worked hard to make the Commission’s work a success. They spent untold hours coordinating Commission efforts. The Commission is especially grateful for the work and assistance of TCP and its talented and hard-working staff. We also thank Brenda Jones Barwick and her team at Jones PR for communications support. Commission members have learned much. We hope this knowledge, as imparted in the report, will result in implementation of all or at least most of the Commission’s recommendations. Commissioners trust their work will encourage, enhance, and expand the ongoing discussion among Oklahomans about the death penalty. Hon. Brad Henry Andy Lester Hon. Reta Strubhar ii The Oklahoma Death Penalty Review Commission Co-Chairs Governor Brad Henry serves Of Counsel to the national business law firm of Spencer Fane LLP and is a founding member of Henry-Adams Companies, LLC, a general and business