Why Even Our Conservative-Dominated Supreme Court Needs to Stop Richard Glossip’s Execution

Posted in: Criminal Law

The fate of Richard Glossip, whose execution is scheduled for May 18, now rests with the United States Supreme Court. Glossip is asking the Court to stay his execution to allow him time to present it with evidence concerning the miscarriages of justice that have marked the handling of his case.

While the Court’s current conservative majority is notoriously hostile to even the most clearly meritorious efforts to delay or stop executions, even they should see the folly of letting Glossip’s execution proceed.

Doing so is not just in Glossip’s interest. In what his lawyer rightly labels an “unprecedented” alliance, an unusual combination of advocates has told the Supreme Court that allowing Glossip to be put to death would do a grave injury to the state of Oklahoma, where he is being held, and to the values at the heart of this nation’s commitment to the rule of law.

Glossip was convicted and sentenced to death for his role in an alleged murder-for-hire plot. Since then, two different independent investigations of his case have been conducted. Both raise serious doubts about the fairness and reliability of Glossip’s conviction.

The first, which was completed last year, concluded that “no reasonable juror hearing the complete record would have convicted Richard Glossip of first-degree murder” and that his trial could not “provide a basis for the government to take the life of Richard E. Glossip.”

The second, which was commissioned by Oklahoma Attorney General Gentner Drummond and completed last month, offers a devastating account of prosecutorial misconduct, ineffective assistance of counsel, and numerous other violations of Glossip’s rights.

Yet on April 20, the Oklahoma Court of Criminal Appeals decided to let Glossip be executed anyway. And since then the state’s Pardon and Parole Board has denied his request for clemency and Oklahoma Gov. Kevin Stitt has said that he will not intervene even to delay the execution.

On April 26, 2023, Glossip’s lawyers filed an Unopposed Application for Stay of Execution with the U.S. Supreme Court. As their application notes, “The Oklahoma Attorney General, relying on his own independent investigation into Mr. Glossip’s case, has recently joined Mr. Glossip’s request to set aside his conviction. Grave concerns about the reliability of Mr. Glossip’s conviction have plagued his case since his 2004 retrial.”

It quotes from the report of the investigation Drummond commissioned. “The Independent Report concluded that the prosecution’s withholding evidence, undermined any hope the ‘State can have confidence in the process and result.’ Glossip’s stay application notes that the report said that the “cumulative effect of errors, omissions, lost evidence, and possible misconduct cannot be underestimated.”

“Absent a stay of execution,” Glossip’s application continues, “not only will Petitioner meet irreparable harm, the State of Oklahoma, too, will suffer grave harm from its Department of Corrections executing a person whom Oklahoma has concluded should never have been convicted of murder, let alone sentenced to die, in the first place.”

What harm would Oklahoma suffer if it executes Glossip?

Given the serious problems in his trial and retrial, putting him to death would be incompatible with the state’s responsibility to afford due process to those accused of crimes. It would undermine, as it should, confidence in the legitimacy of capital punishment and would implicate all who are involved in an act that, as former Supreme Court Justice Harry Blackmun once said, “comes perilously close to simple murder.”

Attorney General Drummond’s filing supporting Glossip’s stay application recognizes these harms.

Drummond notes that “the prosecutor’s role transcends that of an adversary: he ‘is the representative not of an ordinary party to a controversy, but of a sovereignty … whose interest … in a criminal prosecution is not that it shall win a case, but that justice shall be done.’” Drummond correctly argues that “the government “wins its point whenever justice is done [to] its citizens in the courts.” And he continues, “That solemn duty is at its zenith in a capital case, where the stakes could hardly be higher and the consequences of an unjust result irreversible.”

Drummond told the Court that “Whatever is the proper course when the government confesses error on a pure question of law, there is little scope for second guessing a state’s highest law enforcement officer when he or she has lost confidence in a conviction the state has procured…. That is particularly true in a capital case.” And he agrees with Glossip’s assertion about the harm Oklahoma would suffer, saying that “the public interest is clearly served by not executing a man after the State has concluded that the conviction cannot be sustained.”

Another brief supporting Glossip’s application for a stay of execution was submitted by 30 current and former state and federal prosecutors. It reinforces Drummond’s point. “It is just as constitutionally unacceptable,” the brief argues, “for the government to put a guilty person in prison based on false evidence as it is to have an innocent person suffer the same fate.”

The prosecutors note:

Nowhere in the Constitution or in the Declaration of Independence, nor for that matter in the Federalist or in any other writing of the Founding Fathers, can one find a single utterance that could justify a decision by any oath-beholden civil servant to look the other way when confronted by the real possibility of being complicit in the wrongful use of false evidence to secure a conviction. It is for these reasons that the prosecution is not the representative of an ordinary party to a lawsuit, but of a sovereign with a responsibility not just to win, but to see that justice is done.

In addition, Oklahoma State Rep. Kevin McDugle, a long-time death penalty supporter, filed an amicus brief in which he eloquently explained the state’s interest in preventing the kind of miscarriages of justice that have occurred in the Glossip case.

“Refusing to execute the innocent,” McDugle tells the Court, “differentiates the United States from some of history’s most brutal and authoritarian regimes. In the 1930s, Chinese communists reasoned, ‘Better to kill a hundred innocent people than let one truly guilty person go free.’ … In this country we expect better.”

“The integrity of our justice system—and our safety—,” McDugle continues, “depends on ensuring that proper procedures are followed in arresting and prosecuting individuals for crimes, and that the people we punish are actually guilty of the crimes for which they are accused. The founders knew that no utility could be derived from putting an innocent person to death, and in fact more harm would be caused to the security of our democracy. The founders would recoil at the execution of an innocent person like Richard Glossip.”

The briefs submitted in the Glossip case all suggest that it would be “unthinkable,” to borrow Drummond’s word, for the Supreme Court to allow his execution to go forward when Oklahoma’s chief law enforcement officer “has already confessed error.” We can only hope that even our deeply politicized Court will heed that message and prevent the unthinkable from happening to Richard Glossip and the State of Oklahoma.

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