0:00:00.4 Speaker 1: We'll hear argument first this morning in case 1479-55, Glossip versus Gross.
0:00:10.2 Leon: Hey, everyone. This is Leon from Fiasco and Prologue Projects. On this week's episode of Five to Four, the hosts are talking about Glossip v. Gross. In this case, Richard Glossip claimed that Oklahoma's method of lethal injection was cruel and unusual. The Supreme Court rejected Glossip 's argument on the basis that he was unable to propose a viable alternative method of execution. As you'll hear, Glossip 's case has been fraught with twists and turns. He was never even accused of directly committing a murder. Rather, the man who confessed to the crime was coerced by police during interrogation to say that Glossip had commissioned it.
0:00:47.0 Speaker 1: They mentioned Richard Glossip 's name six times and then say, we know you're not smart enough to do this, and if you'll help us out, we can probably get you a lighter sentence. Might not even get the death penalty. You might get something lighter than that. Who helped you out? And so they led him to that doggone answer.
0:01:01.4 Leon: Despite evidence that Glossip is likely innocent, he still sits on death row today. This is Five to Four, a podcast about how much the Supreme Court sucks.
0:01:17.0 Peter: Welcome to Five to Four, where we dissect and analyze the Supreme Court cases that have disrupted our civil rights like the construction outside my apartment has disrupted my sleep.
0:01:27.3 Rhiannon: No beauty rest last night, Peter?
0:01:30.4 Peter: No.
0:01:30.8 Rhiannon: Is that why you look like shit right now?
0:01:34.8 Rhiannon: Got his ass [laughter]
0:01:34.8 Peter: To all of our listeners, she's joking, I look incredible.
0:01:41.7 Peter: The city has decided that my sleep doesn't matter, and what matters is fixing some fucking pipes in the street right outside.
0:01:51.7 Rhiannon: Yeah. Yeah.
0:01:52.4 Peter: I'm here with Rhiannon.
0:01:54.1 Rhiannon: Hello.
0:01:55.0 Peter: Michael taking the day off to avoid her abuse, and because he's a little sick. Get well soon, Michael.
0:02:03.3 Rhiannon: We miss you, Michael.
0:02:03.6 Peter: Today's case, Glossip v. Gross. This is a case about cruel and unusual punishment. As you probably know, the most popular method of execution in this country for the past several decades has been lethal injection, not counting by police. Was that too dark for the top of the episode?
0:02:24.2 Rhiannon: That was pretty dark, Peter.
0:02:31.7 Peter: It was originally thought that lethal injection was a relatively humane way to kill someone, especially compared to electric chairs, which were previously the most common type of execution.
0:02:41.8 Rhiannon: Yeah.
0:02:41.9 Peter: In recent years, however, it has come to light that certain types of lethal injection might be extremely painful, which resulted in some people questioning whether it should be constitutional. The Eighth Amendment, after all, forbids cruel and unusual punishment.
0:02:55.9 Peter: So, legal challenges ensued, and this case is one of them. This particular challenge involves Oklahoma's use of the anesthetic midazolam for lethal injections, which there were reasons to believe it was resulting in notably cruel and painful deaths. Richard Glossip and 20 other Oklahoma death row inmates sued, claiming that the use of the drug was unconstitutional.
0:03:19.7 Rhiannon: Yeah.
0:03:21.1 Peter: But the Supreme Court, in a five to four decision written by Justice Samuel Alito, says no, claiming that the prisoners had failed to provide a viable alternative form of execution. Rhi, handing it off to you.
0:03:39.0 Rhiannon: Let's jump in. There is a lot to talk about in the facts that led up to this case at the Supreme Court. States scrambling during a drug shortage to figure out how they were going to execute people by lethal injection. There's a lot to go over here. But yeah, we should say this is all about Oklahoma, and we don't talk enough on this podcast about how bad Oklahoma is as a state. And yeah, I guess this is as good a case as any for that to be revealed if you didn't know.
0:04:09.7 Peter: Yeah. We always talk shit about Texas and Florida because of you and Michael.
0:04:13.9 Rhiannon: Yeah. [laughter]
0:04:15.4 Peter: And I think that it's time to start spreading the hate around.
0:04:19.2 Rhiannon: Yeah. Yeah. That's right.
0:04:21.0 Peter: Oklahoma sucks.
0:04:22.6 Rhiannon: There are other states very much deserving of our derision as well. I do wanna say in this background, the context here that I'm about to give, I learned a lot from the reporting of Liliana Segura and Jordan Smith in The Intercept, as well as Jeffrey Stern's reporting in The Atlantic. So yeah, this case, Glossip v. Gross at the Supreme Court, is about Richard Eugene Glossip, but it's also in the background about the executions of Clayton Lockett and Charles Warner. Because the Supreme Court case here is not actually about what Glossip did or didn't do. It's not about the evidence that was presented at trial. It's not about the quality of work his lawyer did in defending him. It's about the execution drug protocol in Oklahoma. But listeners should know that Richard Glossip is currently still alive on Oklahoma death row, and he is likely completely innocent. So I think we should talk about his case, and then we should talk about what Oklahoma is doing to torture people as they're being executed. And then we can talk about how the Supreme Court of the United States doesn't think any of this is a fucking problem. Right?
0:05:30.9 Peter: Mm-hmm.
0:05:31.6 Rhiannon: So in 1998, Richard Glossip was convicted and sentenced to death for the murder of Barry Van Trees, who was the owner of a Budget Inn Motel in Oklahoma City. Van Trees was actually murdered by Justin Snead, the maintenance man at the motel. But when Snead was pressured by investigators and threatened with the death penalty, he agreed to testify against Richard Glossip, who at the time was the manager at the motel. And Snead agreed to say that Glossip instructed him to carry out the murder.
0:06:02.9 Rhiannon: Snead got a plea bargain. He took life without parole. Glossip, on the other hand, maintained his innocence. He said he had nothing to do with Snead killing Van Trees, and he refused to plead guilty to anything. So he went to trial and he was convicted. And in July 1998, the jury sentenced him to death. Three years later, in 2001, the Oklahoma Court of Criminal Appeals unanimously overturned Glossip 's conviction. That opinion said the case against Glossip was, "extremely weak" and they ruled that he had been given ineffective assistance of counsel. So his conviction was overturned, but prosecutors charged him again and took Glossip to trial again. In 2004, a second jury in Oklahoma convicted Glossip of commissioning the murder and sentenced him to death again.
0:06:53.9 Rhiannon: There were problems with that trial, too. Glossip argued that his defense attorney had been intimidated into resigning by the prosecutors. Snead had a history of violence. Snead's own family believes he's lying, for example, when he says that Glossip commissioned the murder. But this time, the Oklahoma Criminal Court of Appeals narrowly affirmed the conviction and the sentence. That court is a court with five justices. Two were in the majority voting to uphold the conviction. One justice was in concurrence and two in dissent. So, you know, this is a really narrow affirmation of Glossip 's conviction and sentence, but it is an affirmation nonetheless. And again, this Supreme Court case, Glossip v. Gross, is about Oklahoma's drug protocol. But I think like any treatment of Glossip's case, without mentioning that he is also in all likelihood completely innocent of this murder...
0:07:51.6 Peter: Yeah.
0:07:53.1 Rhiannon: Is incomplete. Right. Just know that as we talk about all of this, what the Supreme Court is saying is okay to do when the state murders a human being by lethal injection, that Richard Glossip is alive right now, awaiting execution in February, and he is very likely innocent. So let's talk about Oklahoma's execution drug protocol.
0:08:12.4 Rhiannon: This part of the story is about drug shortages that started in 2010 and how states were really scrambling together alternative protocols for executing people in the wake of those drug shortages. Execution by lethal injection is usually done with three drugs. There's an anesthetic to render a prisoner unconscious. There's a paralytic drug to make them paralyzed. And a third drug, potassium chloride, stops the heart. But we're mostly focused here on the drugs used to sedate a prisoner, the anesthetic that makes them go unconscious. Almost all of the states that carried out executions used the anesthetic sodium thiopental, but the only FDA approved producer of that drug in the US stopped making it in 2010. States that executed people were really scrambling trying to find another drug that would work. But turns out the business of buying drugs in order to kill people is internationally controversial, we should say. Some states bought sodium thiopental from European companies, but human rights advocates in Europe sounded the alarm and the European Commission amended its regulations on torture and banned the European sale of drugs to be used in executions. So states trying to execute people were scrambling again. Nebraska and South Dakota bought sodium thiopental from a drug company in India.
0:09:34.4 Rhiannon: Once that company realized what they wanted the drugs for, they stopped selling the drug to the US. Now note that all of these states that had imported sodium thiopental had done so illegally. Remember, the only FDA approved manufacturer had been in the US and it had stopped making the drug. The DEA, the Drug Enforcement Agency, literally seized the sodium thiopental supplies in Georgia, Tennessee, Kentucky, South Carolina, and Alabama. Oklahoma was the first to try an alternative anesthetic drug called pentobarbital and it worked in the execution of John David Duty. But then that drug company that was supplying pentobarbital instituted restrictions on distribution so that departments of correction across the country could no longer get that drug. Oklahoma had people to execute so it kept on going. Reporters learned that Oklahoma was using petty cash, literally tens of thousands of dollars from accounts with no oversight, to buy imitation drugs from compounding pharmacies that were selling to departments of correction. But then the compounding pharmacies started backing out too so there was now a shortage of pentobarbital, which remember is the second drug of choice for the anesthetic part of the lethal injection cocktail. Two death row prisoners, Clayton Lockett and Charles Warner, had their execution dates delayed in Oklahoma because the state didn't have the necessary drugs, right?
0:11:06.6 Rhiannon: In the meantime, Oklahoma started looking into yet another alternative anesthetic drug, this one called midazolam. Now, midazolam is usually used during anesthesia to just relax a patient, but then another drug will be administered to block pain during surgery. Not a lot was known about this drug, at least in terms of its use during an execution, but Oklahoma said, we got to murder some people, so they went for it.
0:11:35.1 Peter: Yeah. Can we just pause and talk about how this reads like the supply chain crisis, but with murder drugs?
0:11:44.4 Rhiannon: That's right. Yeah.
0:11:46.1 Peter: It's one of the bleakest things I've ever heard in my fucking life.
0:11:48.7 Rhiannon: Yeah. It's super shady. We're talking about petty cash. We're talking about illegal import, export. I mean, it's fucking, it's really wild.
0:11:56.6 Peter: Rather than not killing people, various states illegally obtained the murder drugs.
0:12:03.4 Rhiannon: That's right.
0:12:04.3 Peter: What the fuck? [chuckle]
0:12:04.3 Rhiannon: That's right. And then we're soliciting shady compounding pharmacies to make imitation drugs. It's really wild.
0:12:12.8 Peter: I can't see some fucking AG going into a CVS and just talking to a pharmacist, like, "What do you have that kills a dude?"
0:12:20.9 Rhiannon: [chuckle] Yeah. It's just about that dark, right? Oklahoma said, we got people to murder. We got people on death row. So we're moving forward with using midazolam. On April 29th, 2014, Clayton Lockett, who was one of those prisoners whose execution had been delayed because of the drug shortage, he was executed by the state of Oklahoma using a lethal injection cocktail that included midazolam.
0:12:46.5 Rhiannon: Now, Clayton Lockett's story is important, I think. His lawyers challenged the use of midazolam and after a complicated journey through the Oklahoma court system, the Oklahoma Supreme Court actually stayed Lockett's execution while it considered whether, you know, the state's secretive laws around lethal injection and the drug cocktail were constitutional. But then here's where Oklahoma really sucks shit. Oklahoma state government basically went apeshit for execution. The governor, Mary Phelan, issued an executive order saying she did not recognize the Oklahoma Supreme Court's authority to stay the execution. And she scheduled Lockett's execution again. A state representative in Oklahoma filed articles of impeachment against the five justices in the Oklahoma Supreme Court who had voted for the stay.
0:13:39.0 Peter: Come on, what the fuck?
0:13:41.2 Rhiannon: And the Oklahoma Supreme Court bowed under that pressure. Two days after staying Lockett's execution, they said, actually, everything's fine. And the execution was rescheduled.
0:13:52.4 Peter: The state of Oklahoma basically modeled their response after, like, FDR, right?
0:14:00.2 Rhiannon: Yeah. Right.
0:14:01.3 Peter: When he's trying to, like, pressure the court to maintain the New Deal in the midst of an economic depression. Oklahoma put that much energy into just killing a dude. That's it.
0:14:11.1 Rhiannon: That's right. That's exactly right. So Clayton Lockett and Charles Warner, the other prisoner whose execution had been delayed, were scheduled to be executed the same night. Now, witnesses to Lockett's execution recount a really horrific event. Lockett was strapped to a gurney and said he did not have any last words. A paramedic tried and failed to place an IV. Then a doctor tried and failed to place an IV until finally got an IV sort of haphazardly stuck in Lockett's groin. The first drug, midazolam, which, remember, is the third choice anesthetic not really used to make people go unconscious, was administered. Minutes passed and Lockett was still alert and conscious. He's still moving his head. After a while, it was determined that he had finally been rendered unconscious. And the two other drugs, the paralytic and the heart stopping drug, were administered. Witnesses saw Lockett move. He kicked his leg. He breathed heavily. He rolled his head. He tried to talk. He lurched against the restraints on the gurney. He appeared to try and get up. Somebody said he's trying to get up. He struggled violently. A doctor checked on the IV. And when he did that, Clayton Lockett opened his eyes and looked at the doctor. Of course, this whole time, Clayton Lockett is supposed to be unconscious, right?
0:15:40.0 Peter: Right.
0:15:40.3 Rhiannon: Paralyzed, and his heart should be stopping. The doctors then tried to place another IV but hit an artery. Blood goes everywhere. Lockett was mumbling. The warden and other state officials from the Department of Corrections, the AG's office, the governor's office, they're freaking out at this point. No idea what to do. The doctor is saying not enough drugs had been administered to kill Lockett. But while they run around being incompetent murderous fucks, Clayton Lockett died on the gurney about 45 minutes after being given the drugs that were supposed to kill him quietly and painlessly.
0:16:15.8 Peter: Right. So at this point, whatever you thought of the drug before...
0:16:22.8 Rhiannon: Right.
0:16:24.1 Peter: There should be an obvious consensus that it's fucked up to use.
0:16:28.2 Rhiannon: Right. Right. This isn't working how it should.
0:16:30.4 Peter: Right. I mean, that's where we are. And this is the amount of information we have going into this case.
0:16:38.6 Rhiannon: Right. Right.
0:16:40.3 Peter: It's hard to wrap your mind around how this comes out the way it does.
0:16:41.9 Rhiannon: Yeah, exactly. So this is the drug protocol. The drug protocol that was used to execute Clayton Lockett, this is the drug protocol that is at issue in Richard Glossip 's case here. This case actually started with Charles Warner as lead petitioner. That was the prisoner whose execution had been delayed with Clayton Lockett's and whose execution was delayed again on the night Clayton Lockett was executed because Oklahoma had just botched an execution. Right. Warner challenged the drug protocol in Oklahoma, but Oklahoma scheduled his execution before the case was heard and the Supreme Court did not grant a stay of that execution. So Charles Warner was executed on January 15, 2015. Richard Glossip became the lead petitioner to challenge Oklahoma's execution drug protocol. And that's how we get to the Supreme Court where the conservatives would like us to know that none of this is cruel and unusual punishment.
0:17:39.7 Peter: Okay. So...
0:17:42.6 Rhiannon: You wanna talk about the law, Peter? [laughter]
0:17:44.2 Peter: Let's talk about the law. I'll try to use as much legalese as possible so that no one accuses us of acting based on our emotions.
0:17:56.3 Peter: So the question here, the legal question is whether the use of this drug violates the Eighth Amendment of the Constitution. The Eighth Amendment prohibits cruel and unusual punishment. And there has long been a push and pull over the extent to which the death penalty itself or certain types of executions might be unconstitutional.
0:18:19.7 Rhiannon: Right.
0:18:22.3 Peter: In 1972, in a case called Furman v. Georgia, the Supreme Court held that the death penalty was functionally unconstitutional. The court found that the arbitrary and often discriminatory application of the death penalty needed to be remediated before it could continue in any given state. And the result was a moratorium on the death penalty across the country.
0:18:43.4 Rhiannon: Yeah.
0:18:44.0 Peter: Just four years later, however, in Gregg v. Georgia, the court reversed course, allowing executions to continue. And from there, the jurisprudence about the death penalty has sort of gone back and forth for decades.
0:19:00.0 Rhiannon: Yeah the, exactly. There's a long line of cases about the death penalty, about capital punishment at the Supreme Court. We're not going to talk about all of them. But I think in this timeline of some of the top level cases, you see the court, like you said, Peter, going back and forth, right? Conservatives win the day in some years. Liberals win the day in other years. And it's all this tension of what are the specifics that are constitutional about executing people? What are the specifics that are unconstitutional? So in 1976, the same year as Gregg v. Georgia, which lifted the moratorium on executions, was a case called Woodson. That case said that mandatory death sentences were unconstitutional. So that means if a statute said that if you're found guilty of first degree murder, you must be put to death, right? The Supreme Court said that's unconstitutional. There has to be a chance.
0:20:00.5 Peter: Case by case analysis, right?
0:20:00.9 Rhiannon: Yeah. There has to be some case by case analysis that a jury is allowed to do. In 1977, a case called Coker, the Supreme Court ruled that a death sentence for rape is unconstitutional. Somebody who gets a death sentence must have killed somebody, not committed a crime other than murder, right? In 1978, a case called Lockett said that juries have to be allowed to consider mitigating evidence in determining whether to sentence someone to death. This case, Lockett, stands for the idea that a jury has to be able to hear and consider reasons why somebody shouldn't be executed before determining whether or not they get the death penalty. Then in 1982, there's a case called Enmund that said that death sentences for people who did not intend to kill the victim are unconstitutional, right? So it's unconstitutional to execute somebody if they killed somebody by accident, for instance. Right. But then you see this shift in the jurisprudence. As you get into the '80s, you get cases like Tison v. Arizona in 1987. We did an episode about Tison really early on. That case says that actually if you didn't commit the murder and you didn't intend to kill anyone, but you were there and you acted recklessly, then you can be executed.
0:21:16.8 Rhiannon: And in McCleskey v. Kemp the same year, we've also done an episode on McCleskey, that case says that showing that administration of the death penalty is racist, that it's meted out in a discriminatory way, that doesn't show that the death penalty is unconstitutional. Stanford v. Kentucky is in 1989. That case says that executing kids as young as 16 or 17 is fine. In 1993, Herrera v. Collins says that a claim of actual innocence does not entitle you to federal habeas relief, meaning you can't get a new trial just because you're innocent, basically. There are many other cases dealing with the death penalty at the Supreme Court, but the last one to mention, I think for our purposes, in highlighting how the Supreme Court has gone back and forth on this for decades is Roper v. Simmons. That's a 2005 case that finally said that executing people who had been minors at the time of the offense was unconstitutional.
0:22:15.0 Peter: Right.
0:22:15.4 Rhiannon: This is a good spot, it feels like, to take a break.
0:22:18.7 Peter: Okay, we are back. So when this case is happening in 2015, we're at a sort of interesting point. Even outside of the death penalty context, you had cases like Graham v. Florida, which found that mandatory life in prison without parole for non-homicide offenses for minors was unconstitutional. So even with a conservative court, we're seeing some big liberal wins.
0:22:46.5 Rhiannon: Yeah.
0:22:46.6 Peter: And just think about the claim here, right? If you brought this now, it would seem audacious, right? Challenging the use of a particular anesthetic in lethal injections, the most common form of execution in this country. That's a claim that this court would toss out without hesitation, right?
0:23:02.0 Rhiannon: Right.
0:23:03.5 Peter: But at the time, they're bringing it, I think, with a viable chance of winning in their minds, and that's the output of an emboldened anti-death penalty legal movement, right? And that's the context in which this case arises.
0:23:16.5 Rhiannon: Yeah.
0:23:19.8 Peter: So the core of the majority opinion here is actually pretty simple. Sam Alito writes it, and what he says is that the prisoners are required not just to show that the method of execution is cruel, but that there is a viable alternative available. And he says that they have not done so. So to be clear, he's saying that what the prisoners have to do is demonstrate that there is an available alternative anesthetic that is less cruel.
0:23:50.3 Rhiannon: Right.
0:23:51.5 Peter: And since the prisoners did not prove that the alternative anesthetics were available because there's like a murder drug supply chain crisis going on, they're out of luck here. Now, you might notice that this does not make a ton of sense. The Constitution forbids cruel and unusual punishment. It doesn't say unless there's no other option. If a punishment is cruel and unusual, it violates the Constitution. Whether or not there's a less cruel option isn't part of the equation, right?
0:24:23.5 Rhiannon: Right.
0:24:25.8 Peter: And yet, not only is the court factoring that in, it's making it the prisoner's burden to identify the availability of a less cruel option, right?
0:24:38.4 Rhiannon: Just ridiculous.
0:24:38.5 Peter: So on top of the obvious sadism here, right? Well, why don't you tell me how you want to die? Why would it be the prisoner's burden to help the state meet its constitutional requirements, right?
0:24:50.2 Rhiannon: Right.
0:24:51.1 Peter: This is the state's obligation. It's the state's obligation to comply with the Eighth Amendment, and the prisoner is being told that, "No, it's actually your obligation to tell the state how to comply with the Eighth Amendment."
0:25:04.8 Rhiannon: Right.
0:25:05.4 Peter: Just sort of nonsense, but that is the court's holding here. There are a couple of dissents here, and the best is by Sonia Sotomayor, who points out that using the court's logic, any execution would be functionally legal if the prisoners weren't able to propose an available alternative, right?
0:25:23.0 Rhiannon: Right. Yes.
0:25:25.2 Peter: So she specifically says this would allow prisoners to be drawn in court, to be tortured to death, to be burned at the stake, as long as they can't prove that there is an available alternative method. The majority actually responds to this at the end of the opinion, not substantively, but just to say, no, it wouldn't. [laughter] And then get mad that they felt like she was using inflammatory rhetoric.
0:25:49.5 Rhiannon: Oh, yeah. Wait till we get to the Scalia Concurrence, then.
0:25:51.8 Peter: There's a line that's like, that she doesn't have good legal arguments when she's using rhetoric like this, and it's like, "No, I'm pretty sure she's right, dude. I'm pretty sure she's spot on."
0:26:04.8 Rhiannon: Yeah. This makes 100% sense, actually, and is the logical conclusion.
0:26:09.9 Peter: 100%. So the majority is not done yet. It then turns to the substantive question of whether this method of execution would actually result in severe pain. And Alito basically says, "Look, first of all, many lower courts have found that this method is painless." Second of all, federal courts should not, "Embroil themselves in ongoing scientific controversies beyond their expertise." So which is it? We're relying on all the other federal courts, or this is beyond a federal court's expertise? I'm not entirely sure.
0:26:44.0 Rhiannon: Yeah. It can't be both.
0:26:46.1 Peter: And if it is beyond a federal court's expertise, why does that mean that we do use the drug rather than we don't use the drug?
0:26:53.7 Rhiannon: Right. Yes.
0:26:54.9 Peter: Not sure about that either, but it doesn't really matter because the very next section is Alito engaging in scientific analysis going on about how he believes that the state's expert is the most credible on the topic, literally moments after shrugging and playing dumb about the science. I think it's worth noting that when the court is dealing with matters outside of its expertise, one option could be erring on the side of caution, meaning in this case, erring on the side of the prisoner's rights, right?
0:27:23.4 Rhiannon: Right.
0:27:23.9 Peter: After all, the stakes for the prisoner are much higher than for the state. And if the court is admitting that it doesn't really know what it's talking about, it might make some sense to take steps to avoid the worst case scenario, which would obviously be allowing people to be painfully executed, right? The court could very easily say here, "Hey, we can't say for certain whether this is cruel or unusual because we don't have the knowledge or expertise, so as a precautionary measure, we're just not going to allow it."
0:27:51.9 Rhiannon: Yes.
0:27:52.3 Peter: Or if they want to be more like legal formalistic, they could place the burden on the state to show that the drug is safe. [laughter] Crazy idea.
0:28:00.3 Rhiannon: That's one option. Yeah.
0:28:01.3 Peter: Instead, the court is content to rely on the state of Oklahoma's a sensible expert, right? Yeah. Just a manifestly dishonest opinion.
0:28:12.6 Rhiannon: Yeah. And we should talk about Stephen Breyer's dissent. Peter and I agree that we kind of prefer Sotomayor's writing and the rhetoric and the arguments she's using in her dissent. But Stephen Breyer's dissent is pretty famous. It's a big dissent where Breyer is looking at decades of studies and statistics and information about capital punishment and how it's administered in the United States. This dissent was written about at the time by reporters and people in the anti-death penalty movement, not just because it was a justice coming out explicitly against the death penalty, but also because people said Breyer was clearly writing for the future, signaling really that the court should overturn the death penalty and bringing back the question of the base constitutionality of executions front of mind for everybody. He says, "Rather than try to patch up the death penalties, legal wounds, one at a time, I would ask for full briefing on a more basic question, whether the death penalty violates the Constitution." So this is what Thomas and Scalia write entire separate concurrences for. But Breyer is saying that there are basically three constitutional defects with the death penalty, serious unreliability, arbitrariness in application and unconscionably long delays that undermine the death penalty's penological purpose.
0:29:35.0 Rhiannon: So note he's not saying that capital punishment on its own is cruel and unusual, but the way it's applied and administered. This is trying to be very practical. This is Breyer as the pragmatist jurist, very functional and fit within the standards that the court has created over the past five decades that supposedly would make the death penalty constitutional, right? The Supreme Court has said it has to be reliable, meaning we're not executing people who are innocent. It has to be fair, meaning not arbitrary. And it has to actually achieve the purpose of why we have the death penalty, which is ostensibly retribution, punishment and deterrence. So Breyer is saying that none of those goals, none of those standards for constitutional administration of capital punishment, none of those standards are met by the system that we have in the US today. And the court should be talking about how the death penalty is unconstitutional.
0:30:34.1 Peter: Right. So both Thomas and Scalia write concurrences that are effectively responses to Stephen Breyer. Some select quotes from Scalia's extremely angry concurrence. Here's how it starts. "Welcome to Groundhog Day. The scene is familiar petitioner sentenced to die for the crimes they committed, come before this court asking us to nullify their sentences as cruel and unusual under the Eighth Amendment." The response is also familiar. A vocal minority of the court waving over their heads, a ream of the most recent abolitionist studies, a super abundant genre, as though they have discovered the lost folios of Shakespeare insists that now at long last the death penalty must be abolished for good.
0:31:18.1 Rhiannon: He's just straight up making fun of them.
0:31:20.4 Peter: Right. The idea that research might over time tilt towards the liberals favor is ridiculous to him.
0:31:29.2 Rhiannon: Yeah.
0:31:29.5 Peter: And to the extent that it might be true, he discards the research out of hand.
0:31:34.5 Rhiannon: That's exactly right.
0:31:35.5 Peter: He doesn't give a shit.
0:31:35.6 Rhiannon: And he's explicitly insulting Stephen Breyer, right? For writing about the possible unconstitutionality of the death penalty. He says, "Justice Breyer elects to contort the constitutional text, redefining cruel to mean unreliable, arbitrary or causing excessive delays and unusual to include a decline in use, he proceeds to offer up a white paper devoid of any meaningful legal argument." Later, he says "Justice Breyer's argument."
0:32:07.2 Peter: Hold on. I'm sorry. Can we pause for a quick moment? He's saying that Breyer is defining unusual to include a decline in use. Now, if you look closely, use is... Look, I'm not an etymologist. [laughter] But certainly the decline in use, a lower level of use makes something more unusual.
0:32:34.8 Rhiannon: Right.
0:32:34.9 Peter: To me, it seems like...
0:32:37.7 Rhiannon: By definition.
0:32:37.8 Peter: Just a straight Miriam Webster's fucking definition of the word unusual.
0:32:45.5 Rhiannon: Yeah, which Scalia supposedly loves.
0:32:45.8 Peter: But I'm just a simple podcast.
0:32:47.3 Rhiannon: Right, right. [laughter] Sorry. Yeah. 'Cause Scalia goes on and says that Justice Breyer's argument is, "Full of internal contradictions and it must be said, gobbledygook."
0:32:55.3 Peter: It must be said. It must be said.
0:33:00.2 Rhiannon: It must be said.
0:33:00.8 Peter: I insist on saying gobbledygook. And in fact, I have to.
0:33:04.5 Rhiannon: Yeah, yeah.
0:33:05.2 Peter: Here's our position. [laughter] You can't talk about Stephen Breyer this way and Scalia. Only we can.
0:33:09.5 Rhiannon: That's right. That's right. Yeah.
0:33:10.3 Peter: Only we can talk about Stephen Breyer this way.
0:33:13.8 Rhiannon: Yeah.
0:33:16.5 Peter: So Scalia also mentions that the Constitution's writers decided to leave up the question of what punishment to give someone to the people up to juries. Now, this is an argument that he and Thomas have been making for decades at this point, essentially saying that the liberals are trying to take away the power from the states to execute people, punish people as they please. Now, worth mentioning, this is never a framework that they would ever use to evaluate the rights that they actually care about, right?
0:33:54.1 Rhiannon: That's right. Yeah.
0:33:55.2 Peter: When they're striking down New York's gun regime, they don't give a shit about state power, right? This is just something they bring up when it's convenient.
0:34:02.6 Rhiannon: Yeah. And also note that what he's saying is that the punishment existing is proof that it's not cruel and unusual, right?
0:34:11.2 Peter: Right.
0:34:11.6 Rhiannon: Because some juries do sentence people to death. But that means a punishment could never be said to be cruel and unusual because a cruel society, a society where cruelty is the fucking point, would never say that their punishments are cruel and unusual, right?
0:34:25.7 Peter: Right.
0:34:25.8 Rhiannon: It's completely circular. So in talking about this decision by the framers, the decision by the framers to leave the question of punishment to juries, Scalia concludes his concurrence with this sentence. "By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty. He rejects the enlightenment." [laughter] That's the last sentence here.
0:34:54.9 Peter: What a fucking idiot. This is a dude whose entire political philosophy stems from the rejection of the enlightenment.
0:35:02.8 Rhiannon: That's right. Like what the fuck are you talking about?
0:35:03.6 Peter: Literally.
0:35:07.2 Rhiannon: You don't like the enlightenment.
0:35:07.3 Peter: Fucking idiot. All right, we should at least touch on Thomas's concurrence, which also responds to Breyer's dissent, but has the added flavor of making the argument that he believes the Eighth Amendment only prohibits methods of execution that are, "Deliberately designed to inflict pain.
0:35:23.9 Rhiannon: Right.
0:35:24.6 Peter: All right. But how is an execution not designed to inflict pain?
0:35:32.0 Rhiannon: Right.
0:35:33.7 Peter: I guess he literally defines pain as separate from death, where if someone just shoots you in the head, you're not trying to hurt them. Is that what I'm hearing from Clarence Thomas? [laughter] We're slicing the definition of pain very thin here, it feels like.
0:35:49.3 Rhiannon: Right. And Thomas is explicit that like he thinks that capital punishment is punishment, that there's a purpose in executing people in retribution, right?
0:36:00.3 Peter: Right.
0:36:00.5 Rhiannon: And so the whole point is inflicting pain on someone for the pain that they've inflicted. This doesn't separate methods of execution to me into like acceptable and not acceptable.
0:36:12.9 Peter: We'll see what he thinks when we got Ginny on the gallows in a few months.
0:36:17.9 Rhiannon: So he says that, but this is otherwise a pretty depraved concurrence where he says he's responding to the claims that the death penalty is arbitrary, that it's not administered in ways that are fair and consistent and reliable. Thomas says arbitrariness is not the court's concern, not a concern of the Constitution. And we've highlighted this before in other cases where conservatives will detail the horrors of the underlying crime in order to argue that whatever brutal punishment is meted out is actually justified. And Thomas does that here, but not with the facts of the murder that Glossip is accused of. He details the murders from fully nine other death penalty cases that the Supreme Court like had some say in, including Roper, which said that executing juveniles is unconstitutional. He says that for all of these cases, the court is inserting itself to save monster murderers from execution based on arbitrariness and other claims, which to him are just made up and not of constitutional or judicial concern. He says, "The best solution is for the court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty."
0:37:30.8 Peter: Yeah. So we've mentioned before that conservatives will often like recount the grisly details of the crime that the defendant in question is accused of. And here is Thomas going beyond that and just talking about other crimes. He's like, here are some murders I've heard about.
0:37:49.2 Rhiannon: That's right.
0:37:49.6 Peter: Pretty impressive stuff. Now, we've gone over these concurrences and dissents at length, and it's worth taking a step back. The Eighth Amendment has throughout the modern era of the court been a battleground between conservatives and liberals. Conservatives, led for much of this time by Scalia, have essentially taken an originalist position, arguing that the term cruel and unusual punishment only applies to things that the founders would have considered cruel, which Scalia, as you see, defines very, very narrowly to the point where it might not even exist. So basically, if the people who built an entire society on the back of human slaves didn't think it was mean, you're good, according to the conservatives, right?
0:38:33.8 Rhiannon: Right.
0:38:36.1 Peter: Liberals on the other hand have generally argued that we should be trying to track society's evolving standards of decency, mapping trends in state laws and so forth to gauge whether society as a whole supports or opposes certain types of punishments. Conservatives basically just think that that is too malleable and difficult to measure, which is a fair point, although I'd add that, A, just because something is difficult to measure doesn't mean it's not worth trying to measure, and B, it's also difficult to measure what the founding fathers would have thought of killing prisoners by lethal injection...
0:39:10.2 Rhiannon: That's right. Thank you.
0:39:14.2 Peter: For example, which originated nearly a century after the founding, and the first record of any widespread use of lethal injection was, let me check my notes here, by the Nazis to execute concentration camp prisoners during World War II.
0:39:24.5 Rhiannon: Cool, cool, cool, cool, cool, cool.
0:39:27.6 Peter: It just feels like maybe we don't know what the founding fathers would have thought about that.
0:39:30.0 Rhiannon: Right, yeah. We should talk about, like, at the time this case comes down, it's 2015, and there was some real perceived potential for the anti-death penalty movement at this time. There are people who had worked in death penalty defense for years were sensing a shift in the Supreme Court, and I think it was because of Breyer's dissent in this case, but also it's 2015, the election is next year, everybody was...
0:40:04.7 Peter: Hillary's a lock.
0:40:10.1 Rhiannon: Right. Everybody was thinking it was going to be a Democrat, Hillary's about to be the president, right? And so there was this sense that the liberals on the Supreme Court just needed to hold on a little bit longer, and the death penalty could be found unconstitutional very soon. People were talking about, like, "We're going to see this in the next 10 years, maybe, that the death penalty would be found unconstitutional at the Supreme Court." And clearly Breyer in dissent here is writing for that movement with an eye towards bringing this issue, the legal debate about capital punishment back to the Supreme Court, getting briefing on it, wanting to hear those cases. And there's a sad re-emphasis of our thesis, if you will, that of course the Supreme Court is fundamentally political because Trump ended up winning the presidency in 2016.
0:41:04.7 Rhiannon: And that idea that the Supreme Court could overturn the death penalty in our lifetimes is now gone. We now have a conservative supermajority, and they're not having any of these arguments, right? To them, it's all been said and done already, and their view on the death penalty is that it's fine, and so this will continue.
0:41:26.6 Peter: Right.
0:41:26.7 Rhiannon: And so we should talk about this long line of jurisprudence at the Supreme Court about the death penalty and what this legal debate means for all of us, right? Something that I think about a lot is how our acceptance of the death penalty legally as a society, morally, however, really shows what violence we tolerate as a society, right? Because the state can legally murder somebody, what other violence flows from that? What other state violence is normalized and we accept every day, right? The extrajudicial killing of people by the police, right? We accept that in some senses because the state can murder people, right? And it does murder people. It murders people cruelly. It murders people painfully. And the Supreme Court is okay with it.
0:42:18.5 Peter: Yeah. And I think it's worth saying, once you've accepted the death penalty as a moral proposition, you've accepted that these state-killing people who pose no threat, who are tied down to a gurney, once you've accepted that that's fine, you just need the right circumstances.
0:42:34.0 Rhiannon: Yes.
0:42:34.5 Peter: You've opened the door to all sorts of brutality from police, from the military, whoever.
0:42:38.0 Rhiannon: Right.
0:42:40.0 Peter: You're no longer arguing about the morality of murder at that point. You're just negotiating about where and when.
0:42:47.3 Rhiannon: Exactly.
0:42:49.1 Peter: Before we wrap, we mentioned Richard Glossip is alive on death row, scheduled to be killed by the state in February 2023. And we said that he was likely innocent. We laid out some reasons. In 2015, I believe, shortly after this case dropped, it was revealed that a box of evidence was destroyed in this case.
0:43:11.0 Rhiannon: Back in the late 90s. Yeah.
0:43:12.3 Peter: And perhaps most interestingly, there was a July 1997 psychiatric evaluation of Sneed, in which he talked about the murder, said he understood that he was charged with it, et cetera, and did not mention Glossip's involvement at all. Perhaps the strongest evidence that it was made up after the fact.
0:43:33.6 Rhiannon: There were also uncovered writings by Sneed to his attorneys. In 2003, he wrote, "Do I have the choice of recanting my testimony at any time during my life or anything like that?" In 2007, he sent his lawyer another letter that said, "There are a lot of things right now that are eating me up." He said there were things that he needed to, "Clean up." And he suggested that he'd made a, "Mistake."
0:44:00.0 Peter: Yeah.
0:44:00.1 Rhiannon: There was also a lot that came out about the problems with the police investigation back in 1997. Records show that police spoke to Justin Sneed for a long time. They were the ones that suggested that Glossip had told Sneed to carry out the murder. They pressured Sneed over and over again to put it on Richard Glossip. And it was only after hours of interrogation that police get this coerced confession that included Richard Glossip as an accomplice, as the person who told Sneed to murder Van Treese.
0:44:38.4 Peter: Yeah. So, I think it's worth noting our position on the death penalty in general, and our position on this case, which is an absurdly reasoned piece of garbage, doesn't depend on whether or not Richard Glossip is innocent. But the fact is, he probably is. And if that doesn't make you concerned about the state of the system, I don't know what does.
0:45:06.4 Rhiannon: Yeah. So just a couple things to say before we wrap up. The first is that these issues with lethal injection continue as a result of this case. On November 17th, Alabama botched the execution of Kenneth Smith. Smith's execution was called off after multiple failed attempts to place an IV line. And just in Alabama, that was the third failed execution since February 2018, and the fourth execution in that same time period with significant IV problems. So, we talked about the violence that flows from the acceptance of capital punishment, the violence that gets normalized in our society. And this is just one of many recent examples of the cruelty that is normal and ongoing because of this Supreme Court case. The last thing I'll say, if you are interested in learning more about Richard Glossip's case and how to help in the movement to get him off death row, you can visit saverichardglossip.com. If you're in Oklahoma, there is an easy form on that website to write directly to the pardon and parole board. And no matter where you are, there are links at the site to sign on to a petition for the pardon and parole board.
0:46:21.4 Rhiannon: You can write the governor of Oklahoma. You can spread the word on social. And you can support Richard Glossip directly, actually, by donating commissary funds or telephone funds so that he can call his loved ones. I gave him $50. If you're able, I think you should too. That's saverichardglossip.com.
0:46:45.3 Peter: Next week, we are taking the week off because you can't make us record on Thanksgiving. You can't do it. But the week after that, we will be back with a premium episode on Sonia Sotomayor. Now, the oldest liberal justice. We're going to talk about her work, which of course, we're pretty big fans of, and also the pressing and controversial question of whether she should retire.
0:47:11.6 Rhiannon: Yep. I have thoughts.
0:47:12.5 Peter: Follow us on Twitter @fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod, all spelled out for access to premium episodes, ad free episodes, access to our slack, special events, all sorts of shit. We'll see you next week.
0:47:31.4 Speaker 5: Five to Four is presented by Prologue projects. Rachel Ward is our producer. Leon Neyfakh and Andrew Parsons provide editorial support. Our production manager is Persia Verlin and our assistant producer is Arlene Arevalo. Peter Murphy designed our website, fivefourpod.com. Our artwork is by Teddy Blanks at Chips NY and our theme song is by Spatial Relations.