Richard Glossip: Meet the Face of America's Death Penalty Depravity
In 2015, the Supreme Court didn't care if Richard Glossip got tortured to death. This fall, they'll hear arguments about whether it matters if he did it.
Richard Glossip is once again living on borrowed time. On Oklahoma’s death row since 1998, Glossip has received three death warrants, and three stays—all for a state error in procuring execution drugs. His own efforts to challenge Oklahoma’s execution protocol have met an end hardly fathomable to anyone who thinks the Eighth Amendment means what it says (more on that later). Last week, the Supreme Court took on the most bizarre question in the Glossip case yet:
Can the state of Oklahoma execute someone they’re not sure is guilty?
Glossip Was Convicted on Unbelievably Shaky Testimony—And Little Else
The facts everyone agrees on: In 1997, Justin Sneed, a maintenance man at the Best Budget Inn Glossip managed in Oklahoma City, beat owner Barry Van Treese to death in Room 102. When coworkers began looking for Van Treese, and police arrived looking for Sneed, Glossip lied…a lot, steering coworkers away from the room, creating two fictional guests to explain damage to it caused by the crime, and helping Sneed replace the room’s broken window.
Once they found Sneed, however, the story diverges: Sneed claimed Glossip paid him to kill Van Treese, and testified as such in exchange for a life sentence. Glossip—who had no prior criminal record—denied the allegations, claiming his earlier lies were to protect Sneed (who looked to his manager as a surrogate father, according to everyone familiar with the hotel). Sneed was a known meth addict who frequently broke into hotel guests’ cars to support his habit, and couldn’t keep straight the amount they’d taken off of Van Treese or the amount Glossip could have paid him; his own family doesn’t believe he’s telling the truth. This, and testimonies of Glossip’s suspicious activity after the fact from two other hotel employees, constituted the whole of the case against him—there was never physical evidence.
Ultimately, two juries believed Sneed’s version of events (the first verdict was described as “extremely weak“ by the state appellate court that vacated it), and when you’re convicted of aggravated murder in the most execution-happy state in America, the story tends to only end one way.
SCOTUS: The Eighth Amendment Is More of a Guideline
As Glossip’s execution date rolled around, however, Oklahoma’s death penalty was in turmoil. Oklahoma had pioneered the original three-drug protocol for lethal injection: potassium chloride would stop the heart and pancuronium bromide would paralyze the subject’s ability to breathe while sodium thiopental kept them sedated throughout the process. This went well enough (for the states) until thiopental manufacturer Hospira, unable to assure European regulators it would not be sold to executioners, pulled the drug from the US market1. States tried a variety of cloak-and-dagger means of acquiring thiopental before ultimately settling on alternative cocktails; Oklahoma opted to substitute thiopental with midazolam.
Midazolam has limited use as an induction agent. The most recent rapid-sequence-intubation2-performing service I worked for listed it as the third-line induction agent, and the first study to analyze its anesthetic potential recommended it only for minimally invasive procedures like endoscopies and dental work; current guidance recommends it only as an adjuvant, or supplement, to more effective drugs. Importantly, midazolam has no analgesic properties, and potassium chloride is well-known to burn intensely: one study noted therapeutic infusions reported pain at rates above 20 mmoL per hour, while Oklahoma’s lethal injection protocol pushes 6,000 times that “immediately.“ While the subjective nature of pain means that the relationship between pain level and sedation success is not concrete, there’s some evidence that procedures typically described as more painful result in more sedation failures.
On April 29th, 2014, these problems came to bear in the execution of Clayton Lockett (along with those inherent in lethal injection, like an underqualified provider needing to attempt a central line after peripheral veins failed). Well after the 90-second time to unconsciousness Oklahoma’s protocol promised, witnesses describe Lockett moving, making eye contact with the physician there to pronounce his death, raising his head, and even speaking, all while simultaneously struggling against the effects of the paralytic and the feeling of being burned alive. His execution ultimately had to be called off, with the team that had just tried to kill him now rushing to save his life (ultimately failing at that too). Glossip, whose own death warrant was dated less than a year later, challenged Oklahoma’s midazolam-based protocol on Eighth Amendment grounds, armed with a brief from 16 professors of pharmacology3 arguing for midazolam’s insufficiency.
From the very beginning, the court’s conservative majority made it clear at oral argument that the whole thing was death penalty opponents’ fault. Justice Alito, who would eventually write the majority opinion, argued that the Glossip’s argument asked the Court to “countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used…with little, if any, pain?“ Justice Scalia wondered aloud if it was relevant that access to the “100-percent-sure drugs“ was being blocked, forcing states into less reliable alternatives. It didn’t matter that this wasn’t true; lethal injections since the first one had shown objective signs of an alarming amount of pain. Nor did it matter that just six years earlier, Alito had joined the plurality opinion in Baze v. Rees stating that failure to sedate a lethal injection subject created a “constitutionally unacceptable“ risk of pain.
In the eyes of the majority, “because capital punishment is constitutional, there must be a constitutional means of carrying it out,“ and so any remedy for lethal injection’s objective cruelty must be evaluated against a proven alternative method (proposed in Baze but codified here) that the state has available and that is proven to work better than the state’s method…which has nothing to prove.
In layman’s terms: it doesn’t matter if the state tortures you to death, if it’d be too inconvenient for them not to.
Then Oklahoma Changed Its Mind—And It Might Not Matter
You can’t say the wanton cruelty of America’s death penalty never did anything for Glossip, however. Charles Frederick Warner, a plaintiff in one of the cases rolled into Glossip v. Gross, did not get a stay of execution while the case was pending, and the state carried on with his lethal injection—along the way accidentally using potassium acetate instead of potassium chloride. While the drugs are about as similar as you expect, Glossip got a few stays while the state nailed down its procurement process. During this time it came to light that Sneed had lied about his psychiatric history, and the prosecution’s evidence log revealed both destroyed evidence that was never revealed to the defense and doubts that Sneed was telling the truth about key events. Glossip’s attorneys petitioned the Supreme Court, arguing that this meant he never got a fair shot; the state of Oklahoma responded to encourage a stay of execution while the matter is settled. Finally, Oklahoma Attorney General Gentner Drummond, while not disputing Glossip’s guilt, argued his conviction should be vacated.
And none of that has to matter.
Oklahoma’s Criminal Court of Appeals subsequently ruled that despite the state no longer standing by his conviction, he had “received every benefit offered by our system of justice and now his conviction and sentence are final;” to Judge David Lewis, “finality of judgments” matters more to the law than the facts those judgments are based on. Lewis is not alone: 2022’s Shinn v. Ramirez offers the same logic in denying a stay of execution for Arizona’s Barry Lee Jones because he hadn’t brought up his evidence of innocence in his state court appeals—even though his lawyer not bringing up that evidence was the keystone of his federal appeals; Justice Thomas defends this twisted logic by arguing that federal courts should defer to the decisions of state and trial courts even if they’re clearly wrong. Nor did Thomas pull the idea out of some thin, miasmic air: the late Justice Scalia wrote a concurrence in 1993’s Herrera v. Collins arguing that litigating innocence claims would make life too hard for lower federal courts, and that the Constitution “lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate.”
Working on the losing end of capital punishment often gets you regaled with tales of this or that gruesome murder, with the implication (if it’s not stated outright) that you shouldn’t care. My go-to argument is that contrary to the rhetorical labyrinths the legal establishment has constructed to justify it, the Eighth Amendment (not to mention, personally and in the stated convictions of a majority on SCOTUS, the Second Great Commandment) is a short and easily understood text—and it doesn’t have loopholes. If that’s not enough for you, I get it, but remember: the courts don’t just not care if it’s torture, they don’t care if you did it.
It bears repeating every time that this unavailability includes legitimate medical uses for thiopental, one of the world’s most important anesthesia drugs.
Quickly sedating and placing a breathing tube in a conscious but crashing patient.
The link is to a brief from the same group of professors in a later case; the argument is enhanced by further developments.