In late September, the Supreme Court refused to stay the execution of Richard Glossip, whose conviction on a charge of murder has been strongly called into question. However, his execution was stayed at the last minute by Oklahoma Gov. Mary Fallin. Glossip’s fate remains unclear, but we can be certain of one thing: The American death penalty system is irretrievably broken…
The problem is that even though Glossip’s moral case is strong, his legal case is much less so. For better or worse, appellate courts place great weight on the “finality of judgment.” Even if a judge disagrees with Justice Antonin Scalia’s view that it does not violate due process for the state to execute a factually innocent person who was given a procedurally fair trial, Glossip represents a trickier case. He does not have, say, exonerating DNA evidence and an unshakeable alibi affirmatively demonstrating his innocence. The state does not have a very good case that he is guilty, but we do not know for a fact that he is innocent.
Appellate courts are therefore not well equipped to deal with this kind of gray area. This is where governors need to step in with their powers to commute the sentences and/or pardon people convicted of crimes. At the very least, [Oklahoma Governor Mary] Fallin should ensure that Glossip is not executed. But public officials who are inclined to support the death penalty, particularly in red states where they also face electoral pressure to be extra-tough on crime, cannot be trusted to do the right thing.
This is the reality of the death penalty. A division of labor is set up in which numerous officials, operating within their formal legal authority, act in concert to produce a flagrantly unjust outcome for which no one person is responsible. As the legal scholar Mark Graber puts it, “Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.”
This is simply not a system that can be defended. It is becoming increasingly difficult to disagree with Justice Breyer’s conclusion in June that the death penalty is categorically unconstitutional. Even if the death penalty could pass constitutional muster in the abstract, in practice it cannot be applied without violating the Eighth and Fourteenth Amendments. Glossip’s case is merely one example of far too many.
Why the American Death Penalty System Is Broken