Judges, Heretics, and Capital Punishment

Posted in: Criminal Law

As you may have seen, the Attorney General of Oklahoma filed a motion asking that the Oklahoma Court of Criminal Appeals slow down the pace of executions in that state. Attorney General Gentner Drummond argued that killing someone on the schedule set by the court—every 60 days—imposed a psychological and professional burden on an overtaxed prison staff that was “too onerous and not sustainable.” He asked that executions take place every 90 days instead.

Judge Gary Lumpkin wasn’t having it. At a hearing on the motion, he said he wasn’t impressed with the “sympathy stuff” and pointed to the slippery slope that had formed in his head. “Who’s to say next month you won’t come in and say I need 120 days? This stuff needs to stop, and people need to suck it up, realize they have a hard job to do, and get it done in a timely, proficient, professional way.” A recording of Lumpkin’s remarks is available here.

It could be that Judge Lumpkin is simply morally obtuse, and that he is either indifferent or oblivious to the toll inflicted on executioners, as several commentators have suggested. If that is true, then there’s really nothing more to be said. Sometimes people say stupid things, and powerful people seem to put their foot in it even more than the rest of us. At a certain point, however, that fact is no longer shocking and its reaffirmation is no longer newsworthy.

But I think something far more interesting is going on. I think the judge’s hostility to Drummond is less a reaction to his motion than an attempt to protect the integrity of his tribe. I think Judge Lumpkin suspects the attorney general is a heretic and is punishing the attorney general for his deviance. The whole imbroglio is an example of what social psychologists describe as the “black sheep effect.”

The logic of the black sheep effect is straightforward. People are tribal; they form and join groups. Some of these groups become essential to their identity, and people derive vital psychological comfort from knowing that their group exists, that it is secure, and that they and their fellow group members are meaningfully different from outsiders. Because these groups can serve such an indispensable psychological role, many people are apt to defend them with particular ferocity. This leads them to police the metaphorical bounds of the group as if their life depended on it (think “culture wars”), but also to be hyper-vigilant about the threat that imposters are masquerading as members and thus weakening the group from within. Think of the attacks on RINOs—Republicans in Name Only—who are shamed and purged from the group for not being ideologically pure. On the left, cancel culture works much the same way and serves the same exclusionary purpose.

You can find a summary of the literature on the black sheep effect here.


To see how the black sheep effect might be playing out in the tiff between Judge Lumpkin and Attorney General Drummond, we need a little context. To begin with, Oklahoma is a staunchly conservative state that retains and still actively uses capital punishment. Since the restoration of the death penalty in 1976, only Texas has executed more people, and no state has executed more people per capita, than Oklahoma. In 2016, a state-wide referendum that amended the state constitution to guarantee the state’s power “to impose capital punishment and set methods of execution” passed 66% to 34%. Among other tasks, the attorney general represents the State in court and defends its death sentences from post-conviction attacks. When it comes to capital punishment, the attorney general is perhaps the most visible face of ingroup membership.

In Oklahoma, execution dates are set by the Court of Criminal Appeals, where Lumpkin sits. In July 2022, the court scheduled execution dates for 25 people, with an execution scheduled for nearly every month from August 2022 to December 2024, an unprecedented schedule, especially given Oklahoma’s well-documented history of botched executions. Drummond took office January 9, 2023. Shortly afterwards, he asked the court to delay the pace of executions, spacing them every 60 days instead of every four weeks. The court agreed.

Then, in April 2023, Drummond filed a motion in the Court of Criminal Appeals to vacate the conviction of Richard Glossip, whose case has attracted national attention based on the cumulative evidence of official misconduct. At the request of Oklahoma legislators, a private law firm conducted an exhaustive reexaminationof the case and concluded there were “grave doubt[s] [about] the integrity of Glossip’s murder conviction and death sentence.” Based on this review, Drummond said he had reached “the difficult conclusion” that Glossip deserved a new trial. Noting a prosecutor’s obligation to seek justice, Drummond said that the many problems with the case “establish that Glossip’s trial was unfair and unreliable. Consequently, the State is not comfortable advocating that the result of the trial would have been the same but for these errors.” Notably, in taking this position, Drummond reversed the position taken by prior attorneys general.

The Court of Criminal Appeals unanimously denied Drummond’s motion.

Drummond then took the unprecedented step of supporting Glossip’s petition before the Oklahoma Board of Pardons and Paroles. Again, it is important to note exactly what Drummond said at that proceeding:

I would confirm that I believe Mr. Glossip is, in fact, guilty of at least accessory after the fact. More likely than not, he’s guilty of murder. But I don’t believe that the evidence presents he is guilty beyond a reasonable doubt, and that is my concern. I believe that when we view the cumulative nature of the facts, I have reached the difficult decision that the state cannot proceed in confidence with the conviction that would result in the death penalty.

During the hearing, a district attorney who was present sent crude and derogatory texts about Drummond to colleagues that attacked Drummond’s willingness to speak on behalf of a death row inmate. The Board denied parole by an evenly split vote, 2-2, with one member of the Board recusing.

Finally, Drummond filed a brief supporting Glossip in the United States Supreme Court. The opening line of Drummond’s papers again reveals his purpose. (I am omitting the case citations):

This Court has long held 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.

On January 22, 2024, the Supreme Court agreed to hear Glossip’s appeal, at least an implicit rebuke of the Court of Criminal Appeals.

Eight days later, Drummond filed the current motion seeking to hold executions every 90 days instead of 60.


This history places Judge Lumpkin’s hostility to Drummond’s motion in a different light. Many media outlets have noted that Judge Lumpkin said he wasn’t impressed with the “sympathy stuff” and that the attorney general and the Department of Corrections have to “suck it up.” But to my knowledge, none has noticed the passage that seems to matter most. After recounting occasions more than two decades ago when the State of Oklahoma executed people far more rapidly than every 60 days, Judge Lumpkin took a direct jab at Drummond:

That Department of Corrections, that AG’s office, those people did their duty. And I’m sorry but I come from the Marine Corps and when we have tough duties, we just say ‘man up.’ … And if those professionals, those people, those leaders from 2001 to 2003 could carry out their duties, in such a professional way without a hitch, then why cannot the leadership that is in place today perform their duties?

The emphasis is in Judge Lumpkin’s original tone.

The implication seems unmistakable. A real attorney general, an attorney general who was a faithful member of the tribe, would never bring such a frivolous motion. That this AG should clutter the court’s docket with this whining just goes to show he really isn’t one of us. Judge Lumpkin’s very public rebuke of Drummond was an attempt to signal to the faithful that Oklahoma has a heretic in high places.

And that is the great tragedy of the whole affair. There is nothing in Drummond’s record that suggests any hesitation about the death penalty, except when it interferes with his superior legal obligation to seek justice and his superior moral obligation to protect prison staff from needless trauma. But Drummond, like his predecessors, clearly has no compunctions about the death penalty. On the contrary, throughout Drummond’s tenure, Oklahoma has continued to have one of the most active execution chambers in the country. According to the Death Penalty Information Center, Oklahoma is one of only five states to have carried out an execution in 2023, and one of only four that has carried out an execution in 2024.

It could be that Judge Lumpkin is a cretin. But it could also be that he is something far worse: an ideologue who is trying to purge Attorney General Drummond for the sin of being more devoted to the Constitution and to basic notions of decency than to killing people. As between a cretin and an ideologue, the latter is far more threatening to the intellectual fabric of the law and the moral fabric of the country.

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