SUPREME COURT HAS ANOTHER OPPORTUNITY TO FIX THE UNFAIR DEATH PENALTY LAWS IN THE COUNTRY AND BE MORE TRANSPARENT
Last Friday, the U.S. Supreme Court decided they would review multiple death penalty cases out of Oklahoma, presumably for the purpose of clarifying whether the state’s lethal-injection protocol is constitutionally affirmable under the Eighth Amendment’s due process clause which prohibits cruel and unusual punishment). The court’s decision to jump back into this maelstrom is odd given the courts 5/4 decision to affirm the death sentence of another once similarly situated (and now dead) defendant the week before.
One appellant in the new case, Richard Glossip, was sentenced to death by Judge Twyla Mason Gray on August 27th, 2004 for the 1997 accomplice murder of Barry Van Treese. Glossip was the manager of the Red Budget Inn in Oklahoma City where he lived with his girlfriend, D-Anna Wood. He had arranged for Justin Sneed (AKA Justin Taylor) to do maintenance work around the motel in exchange for free room and food. In January of 1997, Treese, the owner of the motel, discovered $6,101.92 in shortages at the motel and was planning to confront Glossip. According to Sneed, Glossip told him he would pay him $10,000 to kill Treese; according to the official court record (based on Sneed’s testimony), Glossip told him to kill him in the motel room he was staying at with a bat. Sneed did just that, striking Treese between 10-15 times, breaking a window in the process. The story he told Sneed to tell the police was that two drunken men had gotten into a fight that night. Following the murder, the two men endeavored to clean up the scene and dispose of the body; they also roughly split up $4,000 in cash- $1,757 of which was found in Glossip’s possession upon his detention. Glossip and Wood essentially blamed the murder on Sneed providing the “drunken men” narration to the police. He was found guilty based almost exclusively upon the basis of Sneed’s collaborative testimony; the appellate court attached significance to the discovery of the $1,757 on his person and the existence of a motive (he would have been fired and possibly charged with theft).
The death penalty issue has been at the forefront for the last year especially as it relates to the procedure and protocols being used by death penalty states. Based upon comments made in some major newspapers, readers are increasingly voicing disapproval of the death penalty- particularly in those cases where there was no DNA- and also because the system is viewed as prejudicial and unfair. One prominent writer, Mark Thomason of Clawson, Michigan wrote about the death penalty: I have seen our courts up close, participated in all they do. I can’t trust that mess to decide to kill anyone. The system makes mistakes, many mistakes. It is ordinary people, a few very good, mostly average, and some terrible. Any court case is a risk. Anything can happen. At one time or another, anything has happened. I’m sure there are some people who deserve the death penalty. I just can’t trust that power to anything we can reasonably do as a justice system, with all the flaws of people and institutional pressures that disrupt things.
Even when we know that the death penalty does not deter murders, many still seek the ultimate penalty as a matter of revenge; the classic question is: “What if it was your daughter or wife being raped and murdered”? Well, I suppose I would want revenge, but I think life in prison is an adequate and humane penalty. The Supreme Court now has another opportunity to address the clear unfairness of the death penalty, as opposed to limiting their analysis to the protocol issue; they should squarely address the fundamental fairness aspects of the practice- particularly in light of all the recent exonerations of those previously sentenced to death- as the writer Thomason says, there may be mistakes, but we think it is always better to let a guilty man go free instead of executing an innocent man.
Part of the problem with the high court’s past decisions not to stay a death sentence is that they reflect a lack of transparency on the part of the court; lawyers defending someone who is about to be executed are not provided with the legal standards to apply when the writ or petition is merely denied without further explanation. When dissenters write opinions, the appellate lawyers have some (minority) standards to work with but this is not enough. As William Baude, the author of the article referenced above, says, “The court is in the spotlight more and more. Transparency in all its decisions is vital to its continued legitimacy”.
UPDATE: 4/29/15: The United States Supreme Court heard arguments in these death penalty cases today. The Justices appeared divided, based upon their questions to the lawyers. At stake, are the lives of condemned prisoners, Richard Glossip, John Grant and Benjamin Cole. The primary claim of the defense lawyers is that the use of the drug “midazolam” causes so much pain and suffering that it violates the U.S. Constitution ban against Cruel and Unusual Punishment. The drug was used in 3 botched executions in 2014. At one point, Justice Elena Kagan reportedly said about the drug, if it does not work, than inmates would be burned alive from inside. The likely swing vote will come from Justice Anthony Kennedy. The questions advanced by the Justices were testy, and at times, appeared to suggest that the lawyers were really just there over of the bigger question of whether the death penalty is appropriate given the fact that most educated and enlightened countries in the world have stopped executing people. A decision is expected in June.