Our Imperfect Government Killing Machine

Scott LemieuxIn 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.

—Scott Lemieux
Why the American Death Penalty System Is Broken

8 thoughts on “Our Imperfect Government Killing Machine

  1. Having read the appellate record-the state did have circumstantial evidence against Glossip beyond Justin Sneed’s testimony that matches with the testimony. There was Glossip’s lies to the police, the behavior with people other than the police that was odd, the money that he had on him, the fact that Sneed would not have known about the money in Van Treese’s car save for Glossip telling him and the fact he clearly concealed the body from the police and others. He also had motive as Van Treese was about to discover his, to put it kindly, lackadaisical management of the hotel.
    Glossip also had two trials on this matter and in both situations the juries returned verdicts of guilty. If there was such a weak case, then how did it happen twice?

    My problem is that he was given a death sentence when the person who did the actual killing-Sneed-did not. I know why, I just disagree with it.

    http://caselaw.findlaw.com/ok-court-of-criminal-appeals/1466730.html Has a pretty good break down the case.

    • Yeah, I haven’t read anyone claiming that he is innocent — just that it is a circumstantial case. I haven’t followed the case much. I try not to because I find it really upsetting. I just don’t get the death penalty. But I know of lots of other cases — not necessarily involving murder — where a “helper” ends up getting a worse sentence than the “doer.” Don’t prosecutors care about the incentives that they are setting up? Just kidding! Of course they don’t care! They just care about the number of convictions they get. I have a great deal of respect for lawyers and the sophist tradition. But prosecutors should not be sophists; they should care about the truth. We have a deeply screwed up system.

      • There is very little incentive for prosecutors to get it right I think. Rarely do you have the situation like in the Duke LaCrosse case where the head prosecutor gets disbarred for his inability to do his job. Which means you have the situation in Florida with the Casey Anthony situation and the finding of not guilty because the prosecutor overcharged her and failed to have the evidence to back up the charge.

        There needs to be a change to the system because right now it does not give a lot of confidence.

        • There ought to be some system whereby prosecutors get dinged for error — much less malfeasance. When Debra Milke’s case was overturned 22 years later, the original prosecutor was dead. Plus: prosecutors have far too much power for a free country.

          • One of my colleagues/friends has known one of the detectives in the Milke case for a very long time. He says, and this is all he will say about it, that there is a great deal more to the story then what the media reports on and that Ms Milke is not as innocent as she claims.

            But there are hundreds of examples you could pick from-like how Mississippi used a thoroughly unqualified medical examiner for thousands of cases and the prosecutors knew it but they got their convictions. Despite the hundreds of thousands of lives horribly affected. Or the prosecutors in the Tulia, TX case. Or the…wait, now I am depressed.

            Time for chocolate.

            • Again: I don’t necessarily think Milke is innocent — only that they had nothing on her. The murderers didn’t roll over on her. The main question on it is the motive of the actual killers. I just don’t accept a system where the police decide they know what happened and then railroad someone.

              • If you look into what happens to rape victims-it really is not a surprise. We should expect and receive more from our public servants and also effectively punish them for failing. But we, as a society, never seem to until everything blows up in our faces. Then it is whatever it takes to get the people complaining to shut up.

                Sometimes it works out okay-Cincinnati had a terrible time with their police until a well crafted and more importantly, independent, complaint review system was put in place with real teeth in how to handle the police officers who screw up. It took a lawsuit but it did work. So slow as winter molasses progress.

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