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Justice Breyer misses the lead hidden in plain sight

Justice Stephen Breyer captured headlines with his recent cri de coeur against capital punishment, a statement that was remarkable coming from a justice who was neither a long-term abolitionist, like William Brennan and Thurgood Marshall, nor a deathbed convert, like Harry Blackmun, Lewis Powell, and John Paul Stevens. But Breyer’s dissent in Glossip v. Gross missed an opportunity to highlight a central theme of his dissent: the arbitrary application of the death penalty. As Mark Graber details so skillfully at Balkinization, “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.”

The whole post is worthwhile reading, if only to convey the full absurdity of proceedings that advanced well beyond Kafkaesque some time ago. Here’s the short version of the story:

  • The man who clubbed the victim to death with a baseball bat, Justin Sneed, is not facing execution, despite the lack of evidence casting doubt on his culpability.
  • Sneed escaped a date with the needle by agreeing to testify that a co-worker, Richard Glossip, had paid Sneed $10,000 to kill their boss.
  • Glossip was convicted and sentenced to death for soliciting murder, even though the only evidence against him was Sneed’s paid-for trial testimony.
  • Glossip’s conviction and sentence were overturned by the Oklahoma Supreme Court on grounds of ineffective assistance of counsel, but the outcome on retrial (seven years after the murder) was the same, and the same court upheld it.
  • The heinousness of the murder was offered as an aggravating factor in determining Glossip’s sentence, even though it did not lead to execution for the man who actually swung the bat.
  • During this period, the state repeatedly offered to spare Glossip’s life if he confessed to the murder. Therefore, his death sentence appears to be a way of punishing Glossip for insisting on his right to a jury trial.

It is puzzling why Breyer did not highlight these facts. To be sure, the Supreme Court granted review in Glossip v. Gross exclusively to consider the question of whether midazolam is a sufficiently efficacious numbing agent to make its use compatible with the Eighth Amendment. As such, the Court did not have before it the questions of Glossip’s guilt or sentence, or of the appropriateness of the lower court proceedings. But Breyer used his dissent to place on the table the larger, and thus more obviously bracketed, question of whether the death penalty can ever be administered in a way that is neither cruel nor unusual. Once he took this consequential, not to mention headline-grabbing, step, why would he not draw upon the facts of Richard Glossip’s case?


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