Richard Glossip sits on Oklahoma’s death row, having lived to tell about the nine times that his execution was scheduled and later called off. If he does not hold the record for the most execution dates, he surely has endured an agony that qualifies as cruel.
That cruelty has been compounded by the fact that Glossip did not commit the crime for which he was sentenced to death. And that is not just some wild claim made by a death row inmate and his abolitionist supporters.
It is now the view of the State of Oklahoma, as well.
I wrote about the Glossip case in January and urged the Supreme Court to take his case. It did so and next month will hear arguments about whether Glossip should ever again face an execution date.
As I said before, it should use his case to say once and for all that the Constitution forbids punishing an innocent person. In my view, punishing the innocent violates the guarantee of due process of law and the Eighth Amendment’s prohibition of cruel and unusual punishment.
Now, you may think that is an obvious point. Surely, no one would disagree.
But the Supreme Court has never said as much.
Forty years ago, as I noted in my earlier column, it seemed to say just the opposite. In Herrera v. Collins, a 6–3 majority concluded that evidence of actual innocence was “not relevant” in a petition for a writ of habeas corpus “absent some [other] constitutional violation.”
As Chief Justice William Rehnquist put it, “Due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.… To conclude otherwise would all but paralyze our system for enforcement of the criminal law.” In Rehnquist’s view, so long as the procedures are followed, it doesn’t matter from a constitutional point of view whether the outcome is correct.
Punishing the innocent may evoke moral outrage, but as Rehnquist explained, a claim of “‘actual innocence’ is not itself a constitutional claim.” It is only a “gateway through which a…petitioner must pass to have his otherwise barred constitutional claim considered on the merits.”
Justice Antonin Scalia, as I put it in January, agreed with Rehnquist “that the Constitution does not prevent the government from executing someone with new evidence that indicates that they might be ‘actually innocent.’” He wanted to be even clearer than Rehnquist had been that the Constitution offered no protection for someone, as the Washington Post put it, “with the potential to legally demonstrate they did not commit the crime for which they were convicted.”
The Post rightly described Scalia’s as a “staggering claim.”
But it is a claim that the Supreme Court has yet to repudiate. Indeed, as the Post notes, in 2022, Scalia’s once-fringe position has become the law.
In Shinn v. Ramirez, as the Post says, “the court voted 6 to 3 to overrule two lower courts and disregard the innocence claims of Barry Lee Jones, a prisoner on Arizona’s death row. Importantly, the majority did not rule that it found Jones’s innocence claims unpersuasive. Instead, it ruled that the federal courts are barred from even considering them.”
In the Ramirez case, it was Justice Clarence Thomas, once Scalia’s sidekick and now his successor as the Court’s most extreme, right-wing member, who wrote the majority opinion that championed “deference to state officials, courts and procedures, as well as the sanctity of jury verdicts, in a case in which a defendant was failed by two state-appointed attorneys, in which state officials failed to adequately investigate the alleged crime and in which state courts failed to do anything about any of it.”
Thomas’s list omitted protecting an innocent person from a grievous miscarriage of justice.
For an appellate court to intervene to prevent the execution of an innocent person would, Thomas said, be “an affront to the State and its citizens who returned a verdict of guilt after considering the evidence before them. Federal courts, years later, lack the competence and authority to relitigate a State’s criminal case,” even when the state gets it wrong and even when the error could cost someone their life.
In the twisted jurisprudence of Rehnquist, Scalia, and Thomas, respecting legal technicalities and achieving a final result is more important than achieving justice.
But in the Glossip case, the facts are so egregious and the circumstances so unusual that a majority of the Court, though not Justice Thomas, might just be moved to repudiate that jurisprudence.
Glossip’s petition to the Court documented a very troubling pattern of prosecutorial misconduct. “Even at this late stage of his case,” NBC News reports, “new evidence continues to emerge that the state knew full well that the evidence it used to convict [Glossip] and sentence him to death was false.”
Justin Sneed, the key witness against Glossip, testified only after being promised that the state would not pursue a death sentence for his role in Glossip’s alleged crime. The police repeatedly and falsely told him that Glossip was implicating him, ultimately convincing Sneed to point the finger at Glossip.
Moreover, as I put it in January, “police and prosecutors coached him to change his testimony on material aspects…coaching he accepted and delivered upon” throughout Glossip’s case.
None of this was disclosed in advance of Glossip’s trial. “That failure violated clearly established Supreme Court precedents.”
In addition, Glossip alleges that the state of Oklahoma destroyed or lost key evidence in the case. Here, as elsewhere, Oklahoma Attorney General Gentner Drummond has conceded that what Glossip alleges is true.
That is simply remarkable. The chief law enforcement officer of a leading death penalty state, who is no liberal, opposing the execution of someone convicted of a capital crime is virtually unheard of.
It is so unusual that the Supreme Court appointed a former clerk to Chief Justice John Roberts to replace Drummond in defending a ruling by the Oklahoma Court of Criminal Appeals upholding the conviction and death sentence of Richard Glossip.
In a brief filed in support of Glossip, AG Drummond argued that due process of law does not allow a capital conviction “to stand where a thorough and independent review of previously unavailable information compels the State’s chief law enforcement officer to confess error and conclude that a capital conviction was secured through potentially outcome-determinative prosecutorial misconduct.”
Drummond noted that, relying on the jurisprudence of Rehnquist, Scalia, and Thomas, “the Oklahoma Court of Criminal Appeals refused to accept the State’s confession of error, instead reaching the extraordinary conclusion that Glossip’s execution must go forward notwithstanding the State’s determination that his conviction is unsustainable.”
That decision, Drummond said, “cannot be the final word in this case…. After all, the injustice of allowing a capital sentence to be carried out where the conviction was occasioned by the government’s own admitted failings would be nigh unfathomable.”
“Unfathomable” indeed.
The Supreme Court’s job in this case is to prevent the unfathomable from happening to Richard Glossip. It should focus on that task in the forthcoming oral argument, though I worry it will look for some other way to achieve that result without addressing the issue of whether the Constitution prohibits the execution of the innocent.
If it does so, it will do Glossip a disservice. It is past time for the Court to assure him and us that the Constitution allows nothing to stand in the way of preventing the execution of someone even the state acknowledges has been wrongfully convicted.
I agree with the Innocence Project when it explains, “Wrongful convictions strike at the core of our system of criminal justice, allowing the guilty to escape while inflicting severe punishment—potentially death—on the innocent.” When the Supreme Court hears oral argument in Glossip’s case next month it will have a chance to put a stop to the damage that his conviction did to him and the system of justice in this country.
All Americans should hope that it does so.
