On killing our citizens

Glossip case a cruel and unusual wake-up call.

Impossible to know where to start, for the life and almost death of Richard Glossip is a continuous loop.

"Last minute questions were raised today about Oklahoma’s execution protocol and the chemicals used for lethal injection,” said [Governor] Fallin. “After consulting with the attorney general and the Department of Corrections, I have issued a 37 day stay of execution while the state addresses those questions and ensures it is complying fully with the protocols approved by federal courts.”

So, why, just minutes before the execution, were the questions about these chemicals so severe that they warranted a postponement? 

You ready? 

It turned out Oklahoma didn’t have the right lethal drug to carry out the last step of his execution. Instead of potassium chloride, which stops the heart, the prison had potassium acetate.

Read that again. The state had the wrong drug! How does that happen? You’d think those in charge would check something like that before they order Glossip’s last meal from Pizza Hut, especially considering the state’s recent history in such matters. When notified of the drug error, Gov. Fallin, wisely, postponed the execution. November 6, the new execution date, just happens to be five days after the new state execution protocols go into effect, giving the state more leeway.

Only a cynic would suggest there’s a connection. 

Call me a cynic.

This, for those scoring at home, was the second stay in September. The first occurred on September 16, when the Oklahoma Court of Criminal Appeals postponed the execution by two weeks to consider new evidence. At that point, some earlier pieces of evidence from the case no longer existed.

On the eve of a controversial execution, Fox 25 has discovered key pieces of evidence that could back the claims of Richard Glossip’s innocence were destroyed.

Lovely, huh? Anyway, the court ultimately ruled against Glossip, which got us to the September 30 date, which, in turn, got us here.

The rabbit hole is getting deeper.

Back in 1998 (and in the 2004 retrial), Glossip was convicted of ordering the murder of Barry Van Treese, the owner of the Best Budget Inn in Oklahoma City where Glossip worked. According to the testimony, he paid Justin Sneed, a motel handyman, $10,000 to kill Van Treese because Glossip was afraid Van Treese would fire him for embezzling motel money. During the investigation, detectives quizzed Sneed about Glossip’s involvement.

Apparently, it was an open book exam.

"Before you make your mind up on anything,” [detective] Bemo cautioned him [Sneed], “I want you to hear some of the things that we’ve got to say to you.” Sneed was read his rights, and then Bemo leaned in: “We know this involves more than just you, okay?” Sneed told Bemo that he didn’t “really know what to say about” what happened to Van Treese. “Well,” Bemo said, “Everybody is saying you’re the one that did this and you did it by yourself and I don’t believe that. You know Rich is under arrest, don’t you?” No, Sneed said, he didn’t know that. “So he’s the one,” Bemo replied. “He’s putting it on you the worst.”

The judicial shark was then jumped.

Sneed’s daughter, who wrote a passionate letter in defense of Glossip, could not be found (the phone number on the letter was traced back to an escort service). Sneed reportedly told a cellmate that he acted alone, but he also told Cary Aspinwall of the The Frontier that Glossip orchestrated the murder. 

There was the preposterousness of the thesis itself; Susan Sarandon, who played Sister Helen Prejean in Dead Man Walking, called Gov. Fallin a “horrible person” before apologizing for calling her a horrible person, even though she still considers her a horrible person; there was the letter to Fallin from Tom Coburn, Barry Switzer and others:

If we keep executing defendants in cases like this, where the evidence of guilt is tenuous and untrustworthy, we will keep killing innocent people.

And then there was Oklahoma County District Attorney David Prater, who said Glossip’s defense team was waging a “bullshit PR campaign.”

We pause for a moment to remember that we actually want these death penalty cases to go maddeningly slowly. 

“When the state is putting someone to death,” former District Judge Mark Barcus told me, “the courts must be especially vigilant to make sure due process is followed.”

But that leads us to the actual executing, and for that, we paraphrase Bob Dylan: How d’you want this killing done?

Competently would be nice.

Tuesday night, the state of Oklahoma accidentally killed a man in the middle of trying to execute him. 

That was Slate’s Dahlia Lithwick back in 2014, describing the botched execution of Clayton Lockett when medical personnel injected him with the death goop but somehow missed his vein. 

And now Oklahoma officials don’t check to make sure they have the right kind of potassium on hand the day of an execution? Maybe we’re not good at this.

(Since 1976, by the way, when the Supreme Court ruled that states could again execute convicted murderers, more than 1400 people have been put to death in America, and Oklahoma has executed 112, more than any other state besides Texas.)

The Frontier’s Ziva Branstetter, who, along with Aspinwall, covered the Lockett case for the Tulsa World (both were nominated for Pulitzers), told me she’s not enjoying the latest circus:

"Whether you believe Richard Glossip is guilty or not, he certainly has set the bar for skillfully using the media to make his case for a stay. His famous supporters, including sister Helen Prejean and Susan Sarandon, were able to draw international attention to his case and his claims of innocence. It’s clear that the story Glossip and his supporters were able to sell most of the media on contains some pretty glaring errors. Glossip did change his story multiple times, and Sneed’s testimony was not the only evidence in the case.”

She then wondered what needs to be wondered.

“But setting that aside, one has to wonder whether prosecutors ever should have sought the death penalty in this case. It seems inherently unfair that the person who beat Barry Van Treese to death received a life sentence while Glossip was sentenced to death.”

She has a point. While it’s not unheard of to cut deals with a low-level criminal to get one of greater stature, Sneed isn’t Frank Pentangeli, and Glossip isn’t Michael Corleone. 

And just how bad were Glossip’s attorneys in both trials, that they weren’t able to impugn the word of Sneed, the actual killer, the main prosecution witness?

All of this raises another question, perhaps the most important, the 2,000-volt question: Should we be doing this at all?

More on that in a moment.

Earlier this year, Glossip petitioned the Supreme Court to contend that Midazolam, the first drug used in the 3-drug execution cocktail (and used on Lockett, poorly) was a violation of the cruel and unusual punishment clause of the Eighth Amendment.

Here’s where things got positively ghoulish. 

Justice Samuel Alito, writing for the majority in a 5-4 decision, astonishingly concluded that even if it was cruel and unusual, that just comes with the territory. 

And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

The outlawing of which would be fine, one imagines, to those executed who were, you know, innocent.

New research finds that almost four percent of U.S. capital punishment sentences are wrongful convictions, almost double the number of people set free, meaning around 120 of the roughly 3,000 inmates on death row in America are not guilty.

Justice Stephen Breyer wrote in a separate opinion that it was time to reconsider the whole shebang. 

“Given these changes, I believe that it is now time to reopen the question,” he wrote, adding that the past 40 years of the death penalty in America have led him to believe “that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.’”

In America, we rank 5th behind China, Saudi Arabia, Iran and Iraq in the number of citizens we execute.

This is the company we keep. 

By the numbers, the annual cost of the death penalty in the state of California is $137 million, compared to an estimated $11.5 million for a system without the death penalty.

It’s cheaper not executing people. 

Nevertheless, with brand new spanking facilities Oklahoma is now a one-stop death shop for all your execution needs. 

In Oklahoma, current law states that if lethal injection is deemed unconstitutional or is just not available, the electric chair is the backup option, while the firing squad is the third option. The new law makes nitrogen hypoxia the backup method, with the electric chair and firing squad serving as the third and fourth options, respectively.

Firing squad?

This is the energy we expend.

On November 6, Glossip will be given yet another last meal (this will be his third), led to a renovated chamber where a new ultrasound machine will help find his veins, and be put to death. That’s the plan, anyway. Shortly after Fallin’s announcement, Attorney General Scott Pruitt said he wants all state executions postponed until he can find out what the hell’s going on.

“Until my office knows more about these circumstances and gains confidence that DOC can carry out executions in accordance with the execution protocol, I am asking the Oklahoma Court of Criminal Appeals to issue an indefinite stay of all scheduled executions,” he said. 

Incompetence, confusion, and recrimination. 

This is the state of death in Oklahoma.

When and if Glossip is ever executed, it will all be over.

But none of it will be settled. 

For more views from Barry, read his take on the Pope vs. Jim Inhofe.