The dangerous hidden agenda behind State Question 776 (Guest Post: Sen. Connie Johnson)

Connie Johnson serves as Chair of the Say NO to SQ776 Campaign Committee. She was a State Senator representing District 48 in northeastern Oklahoma County from 2002-2014.

I’ve worked throughout Oklahoma these past few months to defeat State Question 776 as Chair of the Say No To SQ 776/Think Twice Oklahoma campaign. I know why its sponsors put it on the ballot. When you push the hot-button issue of the death penalty on average Oklahomans, most won’t think about any details, regardless of their opinion on the issue. Many think SQ 776 is an up or down question on capital punishment. It’s not. Instead, the authors are trying to dupe Oklahoma voters into putting the death penalty in Oklahoma above the law. That’s what makes SQ 776 so dangerous.

Proponents of SQ 776 seek to “protect” the death penalty by adding it into the Oklahoma constitution. What they really want to protect is death sentences, in case specific methods of execution are disallowed. This was already accomplished when the legislature also passed HB1879, allowing seamless changes to execution methods should one be disallowed or become impractical.

Let’s get one thing clear. The death penalty is not at risk in Oklahoma. Everyone agrees that we must hold dangerous criminals accountable for their actions and we must protect society from them. The one good thing about SQ 776 is that it has started conversations about the death penalty that most people simply have not had. Oklahomans deserve a serious discussion about this issue. We’ll have that opportunity when a bipartisan Death Penalty Review Commission, co-chaired by former-Governor Brad Henry and including top jurists and legal scholars, completes its work early next year.

First, however, we must defeat SQ 776. To do that we must expose the hidden agenda within it. The challenge is to get voters past the confusion that SQ 776 is about the death penalty – it isn’t.

SQ 776  would add a Section 9a to Article II of the State Constitution:

“All statutes of this state requiring, authorizing, imposing or relating to the death penalty are in full force and effect, subject to legislative amendment or repeal by statute, initiative or referendum. Any method of execution shall be allowed, unless prohibited by the United States Constitution. Methods of execution may be designated by the Legislature. A sentence of death shall not be reduced on the basis that a method of execution is invalid. In any case in which an execution method is declared invalid, the death sentence shall remain in force until the sentence can be lawfully executed by any valid method. The death penalty provided for under such statutes shall not be deemed to be, or to constitute, the infliction of cruel or unusual punishments, nor shall such punishment be deemed to contravene any other provision of this Constitution.” (emphasis added)

The problem is that SQ 776 will make the death penalty above the law in Oklahoma.  If it passes and is allowed to stand, this amendment prevents Oklahoma courts from ever declaring the death penalty or a method of execution to constitute cruel or unusual punishment — a violation of the Eighth Amendment to the US Constitution. SQ 776 goes further and adds another provision declaring that no Oklahoma court may find that the death penalty contravenes any other provision of the state constitution.

Oklahoma’s judiciary will be prohibited from interpreting whether the death penalty violates the Eighth Amendment, regardless of how economically, racially or geographically discriminatory it is, how arbitrary it is, how effective legal representation is, or how badly executions are botched. The authors of SQ 776 so urgently want executions that they would violate a fundamental democratic principle — the separation of powers. Therein lies the hidden agenda in SQ 776.

Government and civics classes teach the doctrine of ‘Separation of Powers’ as the bedrock of our democracy. The Legislature makes the laws, the Courts interpret the laws, and the Executive carries out the laws. They check and balance each other. SQ 776 goes against these fundamental democratic intentions of our nation’s founders. The Oklahoma Legislature thinks they can dupe Oklahoma voters into subverting the traditional checks and balances of our three-branch system of government by hiding this change in language that won’t be visible on Election Day.  

Favoring the death penalty is one thing. Wanting to make the death penalty above the law is an entirely different matter. That is really what SQ 776 is about, and that’s also why US Courts will likely end up throwing this out if it passes, at significant unnecessary expense to Oklahoma taxpayers.

Oklahoma voters should think twice about SQ 776, and then vote NO.

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