Justice Stephen G. Breyer wrote a 41-page opinion, complete with five pages of charts and maps, to try to show that the Supreme Court’s 40-year effort to rationalize the death penalty in the United States has failed. But Breyer had no need to go further than the very case at hand.
Richard Glossip, the first named petitioner in Glossip v. Gross [June 29], was convicted of capital murder and sentenced to death for the Jan. 7, 1997, killing of Barry Van Treese, owner of the seedy Oklahoma City motel where Glossip worked as manager. Glossip did not kill Van Treese and to this day maintains his innocence. The actual killer was Justin Sneed, the motel’s teenaged maintenance man, who claimed Glossip pressured and eventually paid him to kill Van Treese in order to cover up suspected embezzlement.
Nothing in Glossip’s case singles out him or the killing as especially worthy of the death penalty. Indeed, the evidence was weak and the circumstances of the killing even crediting the prosecution’s theory were far from the kind of wanton, heinous murder likely to end with a death sentence anywhere except in a death penalty-happy jurisdiction.
Sneed, who is now serving a life sentence for the murder, provided the testimony in two trials that ended with Glossip’s convictions. In reversing the first conviction, the Oklahoma Court of Criminal Appeals called the evidence “extremely weak” and ordered a new trial on grounds of ineffective assistance of counsel. Glossip had turned down a plea bargain with an agreed-on life sentence, but he was convicted and sentenced to death again. Just as in the first trial, Glossip’s new attorney failed to impeach Sneed by highlighting his evasiveness when first interrogated by police. In any event, the conviction and sentence were upheld on appeal and in federal habeas corpus proceedings.
Glossip’s guilt or innocence was not at issue before the Supreme Court. The court’s 5-4 ruling cleared the way for Oklahoma and other states to use the sedative midazolam as the first drug in lethal injections despite some evidence that it fails to render an inmate unconscious for the rest of the procedure. Breyer joined the main dissent in the case, written by Justice Sonia Sotomayor, but wrote separately for himself and Justice Ruth Bader Ginsburg in calling for a complete re-examination of the constitutionality of capital punishment.
Breyer listed four factors to show that the hopeful assumptions the court made in 1976 in reinstating capital punishment have not been realized. The death penalty has been shown to be unreliable: too many exonerations and, in Breyer’s view, strong evidence that one or more innocent men have been put to death. Death penalties have also been imposed arbitrarily, influenced by such supposedly extraneous factors as race and geography. The maps he attached showed the small number of counties in the United States that account for the vast majority of death sentences.
Oklahoma County, which includes Oklahoma City, ranks third in the number of execution-resulting convictions since 1976, according to the Death Penalty Information Center. Two Texas counties rank first and second: Harris County (Houston) and Dallas County (Dallas-Fort Worth).
Credit for Oklahoma County's ranking goes to the late Robert (“Cowboy Bob”) Macy, who won 54 death sentences in 21 years as the county’s elected district attorney. Macy, who retired in 2001 and died in 2011, said publicly that the risk of executing an innocent person was worth taking in the interest of public safety. After he left office, the Tenth U.S. Circuit Court of Appeals wrote in a 2002 decision that Macy’s “persistent misconduct” had “harmed the reputation of Oklahoma's criminal justice system.”
As a third factor, Breyer pointed to the long delay between sentences and actual executions an average of 18 years. Breyer argued the delays are inevitable in a due process system but at the same time undermine the supposed rationales for the death penalty: retribution or deterrence. And as a fourth factor Breyer noticed the declining public support for capital punishment, as indicated by among other things the declining number of death sentences being returned by juries.
The Glossip case was thoroughly dissected in a long article published by The Intercept, the leftist online publication headed by Glenn Greenwald. The article by Liliana Segura and Jordan Smith is advocacy journalism to be sure. Segura, a onetime senior editor at the leftist magazine The Nation, is a member of the National Coalition to Abolish the Death Penalty. Smith is a writer at the Austin Chronicle, independent alternative newsweekly.
The article includes no interviews with prosecutors or members of either of the two juries that convicted Glossip. Nor is there any reporting from those trials to show how the prosecution rebutted Glossip’s version of events. Nor do they note that the Tenth Circuit called the retrial “fundamentally fair” in its decision in 2013 denying habeas corpus. Still, Segura and Smith make a strong showing that the conviction is “flimsy,” based on little else than the testimony of “a confessed murderer with a very good incentive to lie.”
Reporter Graham Lee Brewer, who covers criminal justice for The Daily Oklahoman, has interviewed Glossip many times and questions Glossip’s claims of innocence. But if Glossip is put to death on Sept. 16 as scheduled with the actual killer sill alive the case will be one more example of a system that defies best efforts to be fair and just or even simply to make sense.