More than the Richard Glossip case: For the Constitution, for social justice, for reasons pragmatic and humane, put the death penalty into mothballs

Oklahoma City – The execution of Richard Glossip, a resident of death row at the Oklahoma State Penitentiary in McAlester for 18 years, has been delayed four times. He ordered three “final meals,” and ate two of them, each time awaiting his date with lethal injection.

After nearly two decades in prison, Glossip’s most recent brush with execution (September 30, 2015) saw him pass most of one day in a mysterious form of solitary confinement, uncertain why prison officials were not going forward with his sentence in a “murder-for-hire” case dating back to 1997.

Scores of intelligent people who have reviewed the case, including this writer, believe there is more than room for doubt about his guilt. Many have always said there was insufficient evidence for conviction. Regardless, information from witnesses never heard by judges or juries has raised serious (and new) questions.

New witnesses stand ready to testify that Justin Sneed (the actual murderer) of inn-keeper Richard Van Treese has bragged about setting Glossip up to take the fall for the killing. 

Before all that, many of us reached the conclusion that whatever else it is, the Glossip case is Exhibit A for poor defense counsel, and a matter not worthy of the Ultimate Sanction.

Glossip’s is by far the best-known of the five pending Oklahoma executions. Doubts about his guilt should be sufficient reason for the state government to step away – permanently – from killing him.

The best solution at this point is to take steps needed to convert his sentence to life, and prepare for either a new trial or his release after nearly two decades of incarceration.But concerns about executions reach beyond Glossip, and the dubious witness of one man given life in exchange for that testimony. 

On at least one occasion, Oklahoma used the wrong set of deadly drugs to execute a man. The term “botched execution” has become a short-hand for the last three scheduled deaths. Knowledge of shocking procedural errors devastated public confidence in the system over the past year. Due to a greater stress on finality of judgment than on justice per se, the drug usage error was nearly repeated in the case of Glossip. 

There are three broad categories of opinion in the current debate.

First, there are those who sincerely believe that state killings are immoral. (However, there is more to all this than merely the efforts of passionate advocates to stop capital punishment in all cases.)

Second, many believe the death penalty is morally permitted and can be constitutional, but even many of those people are reeling from the cumulative problems.

Third, some Americans believe the system – with 156 exonerations nationwide (including ten in Oklahoma) — is so broken, dysfunctional and riddled with error that it is beyond repair.

I reside in the third. The penalty is allowed under the U.S. Constitution and the constitutions of many states, but it is time to put it into mothballs. 

Months ago, I encouraged a moratorium on executions. But now, I argue that even if the penalty remains on the books, it is best to set it aside for reasons both practical and moral. 

Last fall, state Attorney General Scott Pruitt and Governor Mary Fallin went to the courts to gain a kind of moratorium. The state should never violate its own process (“protocols,” as the rules are called) for the imposition of death.

After months of investigation guided by Pruitt, the multi-county grand jury is preparing to release a report – if not this month, at least this year.

Three high-ranking state officials who testified behind closed doors before that panel of citizens have resigned their posts and left state employment.

Despite the turmoil, A.G. Pruitt said in recent days he is prepared to start the clock ticking on all five pending executions – once the Department of Corrections is certain its protocol is ready.

But rather than continue to spend millions of dollars litigating individual sentences of death, Oklahoma should set the death penalty process aside.

Leaving capital punishment on the books but not in use avoids, as a conscious democratic and/or administrative choice, continued litigation and social division.

This will not fully satisfy those seeking outright abolition, but it would give lawyers who want a decision declaring the death penalty unconstitutional motive and opportunity to find another state through which to get their case back to the nation’s High Court.

“Mothballs” for Oklahoma executions would not satisfy those who believe that because the death penalty is permitted under the law, it should be used for at least the most heinous cases.

But pursuing both such clear cases and much more dubious ones brought unsustainable expense and undermined respect for the rule of law. 

It is a conservative value to believe that government should be limited in power. Even when the state has a particular power, it should not necessarily be exercised if its use becomes destructive of social comity, civil society, human relationships and the rule of law.

Let us reason together, changing direction in a democratic matter. Rather than insist that one side or another “win” this argument, use resources burned up in capital cases for other purposes.

Among those: Hold killers for life without parole, provide better legal counsel for murder cases, redirect resources from incarceration of the non-violent toward evidence-based programs of diversion, accountability and restitution.

This would square constitutional values with a practical shift toward other means for punishment of the guilty, and leave room for individual redemption and renewal.

The death penalty in contemporary America is such a broken channel for justice that the best thing to do is to step away – sooner, rather than later.