Oklahoma Could Execute Potentially Innocent Prisoners With Nitrogen Gas

Oklahoma has a notorious reputation for its frequent use of the death penalty and for the excruciating and drawn-out deaths that numerous executions have resulted in there, leading to a suspension of the practice since October 2015.

Oklahoma was the first jurisdiction in the world to adopt lethal injection as a form of execution. The United States Supreme Court ruled the death penalty, as it was implemented at the time in 1972, was unconstitutional, though left the death penalty open to new legislation to allow it to continue. In the wake of the ruling, Oklahoma and other states began legislative processes to reinstate the death penalty, which passed overwhelmingly in the Oklahoma state legislature in 1976.

Republican State Rep. Bill Wiseman voted in favor of re-enacting the death penalty at the time due to political pressure, though he staunchly opposed it as a form of capital punishment. Wiseman helped develop a bill in 1977 to establish lethal injection in hopes of making the death penalty “more humane” than electrocution. In interviews preceding his death in 2007, Wiseman expressed profound regret for the bill, which wound up facilitating the death penalty in the state rather than mitigating its impact.

Since 1976, Oklahoma has had the third-highest number of executed prisoners at 112 individuals, and the highest rate of state executions in the country. Meanwhile, 10 prisoners on Oklahoma’s death row have been exonerated of all charges against them.

The state’s death penalty system has come under scrutiny in the past several years, not only for its frequent use, but for a flawed system that led to the horrific lethal injections of Clayton Lockett and Charles Warner that caused the prisoners to endure a heart attack and excruciating pain for 43 and 18 minutes before death, respectively, in 2015. The issues pushed the state of Oklahoma to issue a moratorium on its executions in October 2015 until the issues were fixed. An April 2017 report published by the Oklahoma Death Penalty Review Commission recommended the moratorium continue and noted “[m]any 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.”

In March 2018, the state of Oklahoma announced nitrogen gas will be used to execute prisoners once the death penalty moratorium is lifted after months of failing to obtain lethal injection drugs. The moratorium still continues to this day as prevailing issues with the death penalty remain.

“Our Office and the Oklahoma Department of Corrections notified the Governor’s office that Corrections was unable to obtain drugs and the state would be moving forward with a protocol or Nitrogen Hypoxia,” said Terri Watkins, director of communications for the Oklahoma attorney general, in an email to Truthout. “The Oklahoma Department of Corrections is in charge of writing the protocol for executions. That process is underway, but you will need to check with them on the status.” The Oklahoma Department of Corrections declined to comment.

Prisoners Scheduled to Die Could Be Innocent

Several prisoners on death row in Oklahoma have produced substantive cases in favor of their innocence. Richard Glossip was being prepped for execution days before the moratorium on executions was implemented, but the state of Oklahoma could not obtain the lethal injection drugs to carry out killing him before the moratorium went into effect.

Over the past several years, attorneys representing Glossip have worked to collect evidence to prove his innocence. “From a procedural standpoint, everything is at a standstill,” said Don Knight, an attorney representing Glossip, in an interview with Truthout. “Once the Oklahoma Department of Corrections develops a protocol, then they have to give notice and at that point in time all the prisoners on death row represented by the federal [public] defender’s office will challenge the constitutionality of this nitrogen gas protocol, so I think it will take this matter quite a while until they begin to execute again.”

Glossip was convicted and sentenced to death in 1997 for allegedly hiring 19-year-old Justin Sneed to murder Barry Van Treese, Glossip’s boss and owner of the motel he managed at the time. The entire case relies on Sneed’s testimony. In exchange for his testimony, Sneed was spared the death penalty and sentenced to life in prison. He is currently serving his sentence in a medium security prison.

“The best evidence the state has against Richard Glossip is the testimony from Justin Sneed,” attorney Knight told Truthout. This is a guy you would never trust in anything, but his testimony is what put Glossip on death row. It’s a travesty.”

Among the issues with Sneed’s testimony is how it changed over time, and in 2017, Glossip’s attorneys found a witness, Justin Tapley, who shared a cell with Sneed and explained that Sneed bragged about setting Glossip up. Another former fellow prisoner with Sneed, Michael Scott, gave sworn testimony that Sneed discussed the murder in detail and affirmed he acted alone in the crime. A third witness, another former cellmate of Sneed, Roger Lee Ramsey, told attorneys that Sneed told him about the murder plot, which involved a woman, but made no mention of Glossip.

Medical examiner Chai Choi also testified in Glossip’s trial that Van Treese slowly bled to death over an eight-hour period, signaling to jurors that Glossip could have saved Van Treese. This testimony was in direct contradiction to the autopsy report, which concluded Van Treese died within minutes of the attack.

Another prisoner, Julius Jones, was convicted and sentenced to death in 1999 under similar circumstances. The then-19-year-old freshman at University of Oklahoma was convicted of murdering 45-year-old insurance executive Paul Scott Howell. Jones’s co-defendant in the case, Chris Jordan, testified against him in exchange for a 30-years-to-life sentence, which was subsequently reduced to 15 years. Jordan was released from prison in 2014, and his testimony was the basis for convicting Jones.

Attorneys for Jones have argued racism played a significant role in his conviction. In 2017, during interviews with jurors from Jones’s trial, one juror told Jones’s attorneys, “During the trial I was the juror who went to the judge with the comment from another juror about how it was a waste of time and ‘they should just take the n***** out and shoot him behind the jail’ although that juror was never removed and nothing further came from it.” A study published in 2017 found “the probability of a death sentence for a nonwhite defendant charged with killing a white victim (5.8%) was more than triple the probability of a death sentence for a white defendant charged with killing a non-white victim (1.8%).”

“Julius has always maintained his innocence,” said Dale Baich, assistant federal public defender currently representing Jones. “What we’ve learned is the police relied on confidential informants and allowed tunnel vision to set in during their investigation.”

The only eye witness to the crime, the victim’s sister, described the assailant as a Black man wearing a dark stocking cap, with a half-inch of hair sticking out and a red bandana across his face. Jones’s attorneys noted his hair was nearly clean shaven at the time, and the description fits Jordan.

Jones has exhausted his appeals and his attorneys are currently pushing for clemency proceedings and the Oklahoma Court of Criminal Appeals to consider new evidence based on the jurors’ testimony in regard to racial bias of at least one juror. Jones’s attorneys are also in the process to find out if the red banana worn by the assailant in evidence can be tested for DNA.

“The race issue is really significant,” added Baich. “The study documents systemic racism and we have identified racist statements made by at least one juror who voted to sentence Julius Jones to death. He was an academic scholar in high school, a star athlete with no history of violent crimes. It sure seems to me like he was set up to take the fall in this case.”

Public Still Favors Death Penalty

A significant hurdle for attorneys representing death row prisoners and death penalty abolitionists in Oklahoma is public opinion in the state still overwhelmingly supports the death penalty. In 2016, voters in Oklahoma approved an amendment to protect the death penalty in the state with 66.36 percent of voters in favor.

“We moved the needle from being viewed as an issue that would be overwhelmingly approved by at least 75 percent of Oklahoma’s voters to it only being approved by 66.36 percent of the voters,” Connie Johnson, who served as chair of the Oklahoma Coalition to Abolish the Death Penalty during the vote, told Truthout. “We lost that race, but we moved the needle, literally and figuratively. The fact that it was expected to pass by 75 percent but only got 66.36 percent is indicative of what a little education can do.”

She cited a variety of factors in favor of abolishing the death penalty, from the number of prisoners on death row who have been exonerated, the high economic costs of enacting the death penalty, and the discrimination the death penalty is based on. “If you live in an urban area, you’re more likely to get the death penalty than if you live in a rural area. If you’re poor, you’re more likely to get the death penalty,” she said. “Then for me, ultimately, as a family member of a murder victim, the reality that the death penalty takes away the opportunity of forgiveness. As a Christian, that was the only way that I was able to overcome my brother’s murder … by forgiving the guy.”