The Scary and Horrifying Injustices of the Criminal Legal System

Oklahoma’s criminal legal system is defined by many under-discussed and fairly horrifying facts . Like some horror movie character tiptoeing through the darkness we must first confront some terrifying historical truths about our State in order to change Oklahoma for the better. This October, we should be focused on turning these scary truths into reassuring facts that promote public confidence in our system and create a criminal legal system that is fair to everyone. 

FACT I: Over 7% of Lethal Injection Executions are Botched

According to research, lethal injection is by far the most likely method of execution to result in “unnecessary agony for the prisoner.” In fact, lethal injection is botched at a rate almost three times higher than all other methods of execution combined. This is due, at least in part, to public pressure on drug manufacturers, who have ceased to manufacture and/or export key drugs that were used for lethal injections in the United States. This shortage of available drugs forced States to scramble to find substitutes and while legal challenges to these last minute substitutes have largely failed, in an effort to protect drug manufacturers from public pressure Oklahoma has enacted an execution secrecy law. This law provides that “[t]he identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution shall be confidential and shall not be subject to discovery in any civil or criminal proceedings.”

Under this veil of secrecy, Oklahoma has had many disturbing botched executions. The execution of Robyn Lee Parks ended in disaster when Parks had a negative reaction to the three drug cocktail used. A Tulsa World Reporter, Wayne Greene, who watched the execution, called it “overwhelming, stunning, [and] disturbing. . .” when Parks continued to violently gasp until he finally died 11 minutes after the drugs were administered. More recently, in 2014, Clayton Lockett was subjected to an experimental drug protocol which resulted in Lockett “breathing heavily, writhing on the gurney, clenching his teeth, and straining to lift his head off the pillow.” Lockett died 43 minutes later of a heart attack while still in the execution chamber. Finally, just last year, John Marion Grant began to convulse and vomit for several minutes from the use of Midazolam. 

Oklahoma has scheduled 25 lethal injections through December of 2024. That means, at least statistically, one of them will be botched. On average 4 wrongly convicted death row inmates have been exonerated each year since 1973. There are serious questions about the innocence of some of those currently on death row in the state. Oklahoma needs to  restore a moratorium on executions in light of these unsettling facts.

FACT II: 93% of Failure to Protect Convictions are Women

Oklahoma’s failure to protect law allows the State to charge the mother of an abused child as if she had committed the abuse herself, as long as she knew, or should have reasonably known that the child was at risk for abuse. This law has been applied unevenly, allowing prosecutors to rely on often sexist notions that a mother should be aware of all danger to her child. 

Unlike our neighbor Texas, our law does not take into account domestic violence - which by some estimates, occurred in at least half of all failure to protect cases. This means that many of these women are victims themselves, while studies have shown that leaving an abusive relationship can be difficult due to a lack of resources, distrust of the legal system, and isolation from support systems. Finally, not only are women held criminally responsible for the behavior of their male partners but one in four women actually receive a longer sentence than the party who actually physically committed the abuse. Oklahoma has one of the leading incarceration rates of women in the world, and failure to protect laws are a huge driving force behind this disparity. 

FACT III: 70% of United States Police Departments Currently Use or Plan to Implement Predictive Policing

Predictive policing is an emerging form of data science where police departments use historical crime data to forecast future crime patterns in order to use resources in the highest crime areas. However using historical crime data is problematic because it is a poor measure of true crime but rather only represents official responses to crime. For example, according to the National Victimization Survey, 52% of violent crimes go unreported. Feeding in such biased data creates a feedback loop where only certain areas, such as North Tulsa,  are constantly policed. This creates a system where only certain, usually historically marginalized communities, are stigmatized and these areas are unnecessarily harmed by having near constant contact with law enforcement. 

Unfortunately, predictive policing is not the only use of large scale data science - we are beginning to see actors all across the criminal legal system begin to use algorithms as a large part of their work. To fully understand the future of algorithmic policing and evidence, we must look deep into the past towards one the scariest moments in American history. The Salem Witch Trials occurred during an outbreak of what scholars have sometimes termed ‘mass hysteria,” which resulted in 25 people being executed under the suspicion of witchcraft. 

This event becomes important to us during this discussion because during the trials, a key piece of evidence offered against the accused included what is now known as “spectral evidence.” This evidence referred to the common belief that the devil could inhabit an individual and carry out nefarious deeds using their body. The use of spectral evidence was limited to a group of young girls who were enabled with a presumed special sight to be able to identify the apparitions controlling people’s actions while nobody else could not see them.

The use of proprietary algorithms in courtrooms is no different. This is because these types of advanced machine learning are generally let loose to find the correct answer in any matter the machine deems efficient with minimal human involvement. The algorithm is forming and manipulating data in ways that make the information it is using invisible to everyone else, leading one expert to say at the end of the day, “I don’t know what's in the box.” This problem is further compounded by the use of proprietary source codes - meaning that lawyers, the public, and the court cannot even analyze the base code. These systems are largely untested because they fundamentally cannot be understood by those using them. We cannot allow algorithms to drive our criminal legal system.

What Do We Do?

These facts show the terrifying truth that Oklahoma is failing its citizens by continuing to invest in and create a criminal legal system that does not work. However, the first step to change is admitting there is a problem. There is a problem in Oklahoma, as these statistics indicate, but we - as Oklahomans - have an opportunity to make things right. So this Halloween let us focus on creating a more just criminal legal system for everyone.