How Did We Get Here? A Historical Review of the Death Penalty in Oklahoma
By: Ashley Bender
Oklahoma has a complex history surrounding the death penalty and regardless of public outcries and botched executions, the state continues to move forward with setting dates to put prisoners to death.
The beginning of Oklahoma and the Death Penalty
Present day Oklahoma was once a part of the Louisiana Purchase, meaning that in 1804 when Congress made criminal laws of the United States applicable in the Louisiana Purchase, Oklahoma inherited capital punishment.
Prior to Oklahoma receiving statehood, capital crimes committed in Indian Territory were tried in the federal courts of Arkansas, Kansas, and Texas.
This was due to Oklahoma not having any federal courts, this was until 1889 when Congress established a U.S. district court in Muskogee, the first federal court based in Indian Territory. Though this was a federal court, it did not have jurisdiction of capital offenses, which continued to be tried in the federal courts for Arkansas, Kansas, and Texas. In 1890 a territorial government, with its own judicial structure, was established for Oklahoma Territory. Until statehood, capital crimes committed in Oklahoma Territory were prosecuted in the territorial courts.
On September 1, 1896, the Muskogee court received exclusive jurisdiction of all offenses committed against the laws of the United States in Indian Territory and repealed the jurisdiction of the Arkansas, Kansas, and Texas federal courts. That year, one man was hanged and nine men and one woman were sent to the gallows.
From statehood in 1907 until 1915 executions were by hanging in the county of conviction. The records are not perfect, but the number of people hanged between statehood and 1915 is probably six, all men accused of murder. The number would have been higher but for Lee Cruce, Oklahoma’s second governor. He was against the death penalty. In fact, he commuted every single death sentence imposed during his term.
Cruce’s successor, Robert Lee Williams, did not share his view on capital punishment, and executions began again when Williams took office. The first year of Williams’s term the method of execution was also changed from hanging to electrocution.
In the late 1920s and during the 1930s there were as many as three executions on the same day. In 1972, by the time the U.S. Supreme Court declared the death penalty by electric chair unconstitutional, eighty-two persons, all male, had died in Oklahoma’s electric chair.
After the Supreme Court’s ruling, states began attempting to enact constitutional death penalty statutes. Governor David Boren convened a special five-day session of the legislature in July 1976 to restore the ability to perform capital punishment in Oklahoma. The legislators overwhelmingly voted in favor, 45 to 1 in the senate, and 93 to 5 in the house. The first execution under the new law occurred in 1990.
Continuation into Present Day
From 1915 to March 2004, Oklahoma had executed 156 individuals, including three women. Between 1915 and 1966 eighty-two died by electrocution, and one was hanged. Seventy-three died from lethal injection between September 1990 and March 2004.
After a pair of botched executions, in 2014 and 2015, and a five-year hiatus, Oklahoma is preparing to once again carry out the death penalty with the use of lethal injections.
The first of these was in 2014 at the state prison in McAlester, Okla., when Clayton D. Lockett appeared to moan and struggle during a procedure that took 43 minutes. Doctors concluded that Mr. Lockett had not been fully sedated; he regained consciousness during the process and writhed in pain before he died, long after witnesses, including members of the news media, had been escorted from the death chamber’s viewing room.
Then in January 2015, Charles F. Warner was put to death in an 18-minute execution in which officials mistakenly used the wrong drug to stop his heart. Later in 2015, Richard E. Glossip, a death row inmate who challenged the constitutionality of Oklahoma’s lethal injection protocol before the Supreme Court, was granted a stay of execution after the state’s supplier of lethal injection drugs sent prison officials the wrong drug.
Regardless of the wrong implementation of the drug and the suffering of Oklahomans, the state said it had no plans to change the three-drug sequence that it used in its execution protocol before the moratorium: midazolam, a short-acting sedative; vecuronium bromide, which stops breathing; and potassium chloride, which stops the heart.
Oklahoma is not the only state to have issues with the death penalty. In fact, many states have had problems in recent years not only administering lethal injections, but also acquiring execution drugs. States have been scrambling to obtain the drugs and trying new combinations in the face of shortages as manufacturers have ceased production or prohibited the use of their products in executions.
The struggle to find the drugs required for lethal injection has caused some states, including Oklahoma, to consider more antiquated ways of putting inmates to death. Tennessee is allowing prison officials to use the electric chair if lethal injection drugs are unavailable.
In 2015, Governor Mary Fallin signed the Nitrogen Hypoxia Bill, or House 1879 Code 22 OS 1014, which had passed the Senate with no objection whatsoever. This bill gave an alternative to lethal injection in the case that lethal injection couldn’t be obtained by the state. The alternative is to asphyxiate a person by placing a bag or mask on the inmate and filling it with nitrogen and no oxygen, which would knock them out within seconds and kill them within minutes. Though this law was passed in 2015, Oklahoma still struggles to find a company to support such barbaric methods. In fact, AIRGAS, Oklahoma’s main gas supplier, stated it would not supply nitrogen for executions.
In 2021, the threat looms again…
There are currently 47 inmates on Oklahoma’s death row, 26 have exhausted their appeals and are awaiting an execution date. Additionally, seven inmates have had sentencing dates set as of August of 2021.
Attorney General John O’Connor asked the Oklahoma Court of Criminal Appeals to set execution dates for James Coddington, Donald Grant, John Grant, Julius Jones, Wade Lay, Gilbert Postelle and Bigler Stouffer. The people on death row have filed a class action suit in federal court to determine whether or not Oklahoma’s method of execution is constitutional under the Eighth Amendment. “U.S. District Judge Stephen Friot agreed in his order to consider at trial whether Oklahoma’s current three-drug protocol risks subjecting inmates to unconstitutional pain and suffering.” This suit is expected to go to trial in February of 2022.
The death penalty is a political lightning rod, making strange bedfellows of opponents hailing from all parts of the political spectrum. Proponents claim that the death penalty saves money and creates the ultimate deterrent against horrific crimes. On the costs, it has been shown that the death penalty is actually more expensive to taxpayers than the sentence of life in prison. As far as a deterrent, international studies have shown a decline in murder rates in locales where the death penalty has been outlawed.
This piece has been compiled as a way to raise awareness for the case of death row inmate Julius Jones and in support of his clemency hearing, which will be scheduled for October 5th, 2021.