Is Richard Glossip's Ordeal Cruel and Unusual?

If death row inmates could challenge their long delays under the Eighth Amendment, what would happen to capital punishment?

By Nathan Pippenger

After a long series of delays, including a second trial, a Supreme Court case, and, most recently, a two-week stay to consider new evidence, Oklahoma was set to execute Richard Glossip yesterday. The last stay, in mid-September, came so late that Glossip had already been served his last meal. On Wednesday, Glossip—convicted of planning (but not carrying out) the 1997 murder of Barry Van Treese, the owner of the motel where Glossip worked—once again received temporary relief within hours of death, allegedly due to concerns over whether the state had procured the right drugs for the execution.

In the eyes of many observers, the case against Glossip is exceedingly weak. It’s universally agreed that he did not actually kill Van Treese: Justin Sneed, who also worked at the motel, confessed to that crime and is serving a life sentence. Sneed told police officers that Glossip offered him money to carry out the murder, but he seems to have implicated Glossip only after officers—who told him, during interrogation, that they did not believe he had acted alone—gave Sneed the impression that he would get off more easily if he named his accomplice. Sneed’s own daughter has said that her father would like to change his story, but fears that doing so will subject him to the death penalty.

The case against Glossip is so compromised—and the trajectory of his conviction and sentencing so dysfunctional—that it is used as an example in legal scholarship. A 2006 article in the Wisconsin Law Review used Glossip’s original trial to showcase the grave consequences of differences in quality of counsel. Calling Glossip’s lawyer “amazingly inept,” the article notes that he failed to introduce Sneed’s videotaped confession as evidence—even though it would have revealed “numerous material inconsistencies and omissions” compared to Sneed’s trial testimony, not to mention the obvious incentive Sneed had to finger Glossip under the circumstances. Amazingly, lawyers also failed to show the videotape when Glossip’s case was re-tried years later.

These problems with the case have been enough to repeatedly delay, but not derail, Glossip’s execution. He has now received four stays, and his Supreme Court case challenging the constitutionality of lethal injection drugs failed. It’s troubling to imagine the psychological toll of this repeated process of coming so close to execution: as human rights advocates have noted, it’s disturbingly close to mock execution, which is considered a form of torture. While there seems to be little systematic research on the issue, experts who have observed such prisoners report long-lasting psychological damage. As Glossip’s attorney has said: “This process is just really wearing him down. It’s truly a very difficult thing for him to take.”

By now, Glossip has been awaiting execution for nearly two decades. Glossip has been imprisoned longer than Clarence Lackey had been when he famously challenged his long stint on death row as a violation of the Eighth Amendment. The “Lackey claim,” which the Supreme Court rejected, alleges that the suffering caused by such a prolonged wait constitutes cruel and unusual punishment. A 1997 article in the New England Journal on Criminal and Civil Confinement offers psychological and comparative-legal support for this claim, pointing out prisoners’ “years of tortuous delay and uncertainty” and noting that such delays have been recognized as inhumane in English common law.

To be sure, Glossip’s delays are not due merely to sluggishness on the part of the state: they can be attributed in part to the second trial and the failed Supreme Court challenge. Even so, one can still imagine serious psychological damage caused by such a long period of uncertainty and the repeated close calls caused by eleventh-hour stays. It seems more than plausible that subjecting prisoners to years, or even decades, of such treatment would call for Eighth Amendment remedy. But, as Elizabeth Rapaport pointed out in a recent Scholars Strategy Network brief, slowness is such a pervasive problem that an Eighth Amendment solution would not simply address the narrower “cruel and unusual punishment” objection—it would advance the elimination of capital punishment as it’s currently practiced. Rapaport notes: “Because execution in the United States follows condemnation by more than a dozen years on average, and hundreds of death row cases are still not resolved after twenty to thirty years, recognizing the Lackey claim would take the United States a long way down the road to abolition.” In the meantime, after four stays in total, Richard Glossip has been scheduled, once again, for execution—this time in early November.

Nathan Pippenger is a contributing editor at Democracy. Follow him on Twitter at @NathanPip.

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