Third, some Americans believe the system – with 156 exonerations nationwide (including ten in Oklahoma) -- is so broken, dysfunctional and riddled with error that it is beyond repair.
I reside in the third. The penalty is allowed under the U.S. Constitution and the constitutions of many states, but it is time to put it into mothballs.
Months ago, I encouraged a moratorium on executions. But now, I argue that even if the penalty remains on the books, it is best to set it aside for reasons both practical and moral.
Last fall, state Attorney General Scott Pruitt and Governor Mary Fallin went to the courts to gain a kind of moratorium. The state should never violate its own process (“protocols,” as the rules are called) for the imposition of death.
After months of investigation guided by Pruitt, the multi-county grand jury is preparing to release a report – if not this month, at least this year.
Three high-ranking state officials who testified behind closed doors before that panel of citizens have resigned their posts and left state employment.
Despite the turmoil, A.G. Pruitt said in recent days he is prepared to start the clock ticking on all five pending executions – once the Department of Corrections is certain its protocol is ready.
But rather than continue to spend millions of dollars litigating individual sentences of death, Oklahoma should set the death penalty process aside.
Leaving capital punishment on the books but not in use avoids, as a conscious democratic and/or administrative choice, continued litigation and social division.
This will not fully satisfy those seeking outright abolition, but it would give lawyers who want a decision declaring the death penalty unconstitutional motive and opportunity to find another state through which to get their case back to the nation's High Court.
“Mothballs” for Oklahoma executions would not satisfy those who believe that because the death penalty is permitted under the law, it should be used for at least the most heinous cases.
But pursuing both such clear cases and much more dubious ones brought unsustainable expense and undermined respect for the rule of law.
It is a conservative value to believe that government should be limited in power. Even when the state has a particular power, it should not necessarily be exercised if its use becomes destructive of social comity, civil society, human relationships and the rule of law.
Let us reason together, changing direction in a democratic matter. Rather than insist that one side or another "win" this argument, use resources burned up in capital cases for other purposes.
Among those: Hold killers for life without parole, provide better legal counsel for murder cases, redirect resources from incarceration of the non-violent toward evidence-based programs of diversion, accountability and restitution.
This would square constitutional values with a practical shift toward other means for punishment of the guilty, and leave room for individual redemption and renewal.
The death penalty in contemporary America is such a broken channel for justice that the best thing to do is to step away – sooner, rather than later.