The Broken Machinery of Death

Most of what’s wrong with the death penalty can be seen in the case of Richard Glossip:

The problem is that even though Glossip’s moral case is strong, his legal case is much less so. For better or worse, appellate courts place great weight on the “finality of judgment.” Even if a judge disagrees with Justice Antonin Scalia’s view that it does not violate due process for the state to execute a factually innocent person who was given a procedurally fair trial, Glossip represents a trickier case. He does not have, say, exonerating DNA evidence and an unshakeable alibi affirmatively demonstrating his innocence. The state does not have a very good case that he is guilty, but we do not know for a fact that he is innocent.

Appellate courts are therefore not well equipped to deal with this kind of gray area. This is where governors need to step in with their powers to commute the sentences and/or pardon people convicted of crimes. At the very least, Fallin should ensure that Glossip is not executed. But public officials who are inclined to support the death penalty, particularly in red states where they also face electoral pressure to be extra-tough on crime, cannot be trusted to do the right thing.

This is the reality of the death penalty. A division of labor is set up in which numerous officials, operating within their formal legal authority, act in concert to produce a flagrantly unjust outcome for which no one person is responsible. As the legal scholar Mark Graber puts it, “Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.”

This is simply not a system that can be defended.