JURIST Guest Columnist Meghan J. Ryan of Southern Methodist University Dedman School of Law discusses the controversy surrounding Richard Eugene Glossip’s Oklahoma death penalty sentence…

The recent activity surrounding the scheduled execution of Oklahoma’s Richard Eugene Glossip has once again spotlighted the three-ring circus that has become America’s death penalty. Glossip was convicted of hiring a hitman to kill a motel owner. His conviction was based primarily on the testimony of Justin Sneed, who claimed that Glossip had hired him to bludgeon the victim to death. In exchange for this testimony, Sneed was sentenced to life without parole rather than death. As Glossip’s scheduled execution date neared, Glossip’s attorneys challenged the method by which Glossip was to be executed. Unable to obtain the drugs it had regularly employed in executing offenders, Oklahoma was experimenting with different combinations of drugs to carry out executions. Executions had been botched as a result, and Glossip’s attorneys argued that the method that was to be used to carry out this execution would violate the Eighth Amendment’s prohibition on “cruel and unusual punishments.” The US Supreme Court rejected this claim. Glossip’s lawyers later unearthed evidence suggesting that Glossip may actually be innocent of the crime for which he was convicted. For example, one of Sneed’s fellow inmates claims that Sneed has admitted he set up Glossip in exchange for obtaining a lesser sentence himself. The Oklahoma Court of Criminal Appeals briefly stayed Glossip’s execution to provide time to wrestle with his actual innocence claim, but the court later rejected the claim. Two days later, the US Supreme Court denied Glossip’s request for a stay of execution so that he could pursue his claim of actual innocence. That same day, Oklahoma’s governor granted a stay as more questions arose about the drugs to be used in carrying out the execution. Glossip is now scheduled to be executed on November 6, 2015.

The possibility of executing an innocent person has made major waves in recent years. There have been approximately 1,700 exonerations in the US since 1989. The reasons why innocent individuals have been wrongfully convicted range from faulty forensic evidence, to inaccurate eyewitness testimony, to falsified snitch testimony like that alleged in Glossip’s case. Considering the large number of exonerations, it seems likely that some people who have been executed were actually innocent. Indeed, our system of justice does not require certainty of guilt before a person is convicted and sentenced to even the worst of punishments. We require that guilt be proven only beyond a reasonable doubt. And of course requiring absolute certainty of guilt would create an unworkable system.

Perhaps hoping to reassure doubters, Justice Scalia and others have pointed out that it has never been legally determined that anyone who has been executed was actually innocent. However, there seems to be no real avenue for challenging the propriety of an execution that has already taken place. If wrongful executions cannot be legally challenged, of course there cannot be any legal determinations of wrongful execution. In an attempt to remedy this conundrum, the American Bar Association has recently passed a resolution urging jurisdictions to establish legal avenues to challenge wrongful executions and also to provide compensation if there is a determination of wrongful execution. Should jurisdictions pass legislation to this effect, we likely will be able to determine more definitively whether an innocent individual within the US has been executed. We might even be able to speculate as to how common of an occurrence this has been throughout time.

In addition to this wrongful execution quandary, Glossip’s legal battles highlight the methodological problems with today’s death penalty. The Supreme Court has repeatedly stated that the death penalty, itself, is not unconstitutional. Indeed, the Constitution enshrines the practice by referring to the limitations on depriving an individual “of life” in the Fifth and Fourteenth Amendments. As the court explained in its recent case of Baze v. Rees, however, the way in which the death penalty is carried out could potentially violate the Eighth Amendment’s prohibition on “cruel and unusual punishments.” If the method involves a “substantial risk of serious harm…[or] pain” to the offender, it is unconstitutional. The difficulty is that we do not actually know the extent of the risk of harm or pain posed by these new lethal injection cocktails like the one challenged in Glossip’s case. As states have had difficulty obtaining the drugs used in traditional lethal injection cocktails, states have had to begin experimenting with how their death row offenders are executed. Conducting experiments on human beings, though, is ethically questionable. And the lack of information about how to humanely execute offenders is exacerbated by the fact that one drug typically included in lethal injection cocktails is a paralytic that masks the offender’s pain during execution. This paralytic is said to preserve the offender’s dignity, to prevent him from flailing about as he is being killed.

In the court’s opinion addressing Glossip’s challenge to the drugs contemplated in his earlier-scheduled execution, a majority of the justices seemed to have ventured down a new path in its analysis of the Eighth Amendment and the acceptable methods for carrying out state-sanctioned death. The justices stated that “it is settled that capital punishment is constitutional,” therefore “it necessarily follows that there must be a constitutional means of carrying it out.” The majority then launched into the story about how the drugs traditionally employed in the lethal injection cocktail have been made unavailable to executioners due to capital punishment opposition from Europe and pressure on relevant domestic drug manufacturers. The Eighth Amendment, though, prohibits all “cruel and unusual punishments.” If a punishment that would ordinarily be acceptable under the Constitution can only be carried out in a way that is cruel and unusual, it would directly contradict the terms of the Amendment. Imagine a world in which, for practical reasons, execution was not possible by any means other than drawing and quartering. To be sure, this is an unlikely scenario, but it gets at the heart of what the majority stated in the opinion. Are we really prepared to find constitutional the practice of executing someone by hanging them until they are almost dead, disemboweling them, burning their entrails, beheading them and then quartering them by tying each limb to a separate horse and then spurring the horses in different directions? Supreme Court case law before Glossip’s case is quite clear that such torture is unconstitutional.

Our exuberance for capital punishment has led us down some questionable avenues. The political process might finally be taking care of this, though. Budget deficits and concerns about the high number of recent exonerations have caused several states to reconsider the wisdom of capital punishment. Since 2007 New Jersey, New York, New Mexico, Illinois, Connecticut, Maryland and Nebraska have all abandoned the practice. If states continue along this trajectory, the number of states and their consistency in moving away from the death penalty might cause the court to conclude that a consensus has been reached that we ought to turn our back on the punishment. Such a consensus should then lead to the conclusion that capital punishment is unconstitutional under the Eighth Amendment. That is, of course, unless the language of the Constitution specifically referencing the punishment of death is found to trump this traditional Eighth Amendment analysis of looking at “the evolving standards of decency that mark the progress of a maturing society.”

Meghan is an Associate Professor of Law at Southern Methodist University Dedman School of Law. Her scholarship includes the intersection of Criminal Law and Procedure, Torts and Law and Science.

Suggested Citation: Meghan J. Ryan Innocence, Experimentation and Executions in Oklahoma and Beyond, JURIST – Academic Commentary, November 3, 2015, http://jurist.org/forum/2015/meghan-ryan-death-penalty.php.