The Breyer/Ginsburg dissent in Glossip v. Gloss made a strong argument that the death penalty is categorically unconstitutional, a position that may well become the default position of Democratic Supreme Court nominees. It’s worth noting — as Breyer’s dissent did not — that Richard Glossip is a particularly strong case for the arbitrary, unreliable nature of the death penalty:
Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.
Richard Glossip is likely to be executed, even though the Oklahoma Supreme Court implied if not stated outright that, given the inconsistencies in the trial record and police reports in his first trial, and decent counsel would have beaten the murder charge, if not the entire conviction.
Richard Glossip is likely to be executed even though the witnesses at his second trial were trying to recall events that happened more than seven years ago and at least two justices not known for their liberalism think prosecutorial misconduct biased the jury.
Richard Glossip is likely to be executed even though Justin Sneed, who provided the only evidence that directly ties Glossip to the murder of Barry Van Treese, was induced to testify by the promise that he would not be executed. Not exactly the most reliable testimony.
Richard Glossip is likely to be executed because no physical evidence can exonerate him. There is no physical evidence in this case. The central issue is whether Justin Sneed lied or exaggerated in order to save his skin.
Richard Glossip is likely to be executed even though Oklahoma has decided not to execute the person who actually committed the murder, Justin Sneed. This seems particularly arbitrary given that one of the aggravating factors in the case was the brutality of the murder and Sneed was the person who actually committed the murder.
Richard Glossip is likely to be executed even though for almost a decade, Oklahoma was prepared to promise Glossip that he would not be executed if he confessed to the crime. Glossip is being executed because he exercised his constitutional right to a jury trial.
There are some similarities between this case and McKleskey v. Kemp, the 1987 case in which the Supreme Court considered whether the death penalty was unconstitutional if there was proof of systematic racial discrimination. (Majority holding: ¯\_(ツ)_/¯) It’s not a prefect comparison: there is the possibility that Glossip is entirely innocent of the murder, whereas McKleskey was part of the robbery that led to the killing of a police officer and was at the scene. But McKlesley was singled out among the four conspirators for the death penalty based on “evidence” that he was the triggerman that came from an illegally paid informant.
To return to Glossip, Thomas’s concurrence responded to Breyer’s lengthy demonstration of the arbitrary nature of the death penalty by describing some horrible crimes committed by people who were executed. But this is just a non-sequitur. Breyer’s argument was not that nobody executed in the United States has convicted a heinous crime. Breyer’s argument was that the death penalty does not reliably single out the worst crimes for the ultimate punishment, even in death penalty jurisdictions, and sometimes results in killing people who were guilty of no crime at all. The facts of the lead petitioner’s case illustrate this. The evidence that Glossip is guilty at all is underwhelming, and even assuming arguendo that he paid for the murder he’s not obviously more culpable or deserving of punishment than the man who committed it.
Potter Stewart said in Furman v. Georgia, the case that temporarily suspended the death penalty in 1972, that the death sentences in question were cruel and unusual “in the same way that being struck by lightning is cruel and unusual.” It remains true today.