New Court Filing Challenges Legality Of Death Penalty

“It’s a long shot, but the Breyer dissent was inviting people to challenge the death penalty. They just accepted the invitation.”

Someone has taken up Justice Stephen Breyer's invitation to challenge the constitutionality of the death penalty.

Breyer suggested in a dissenting opinion last month that the death penalty "very likely violates the Eight Amendment," and called for the U.S. Supreme Court to address "that very basic question." 

The plaintiffs who lost Glossip v. Gross, the case pertaining to Breyer's dissent, on Friday filed a petition for the high court to re-hear their case. 

The plaintiffs, all inmates on Oklahoma's death row, challenged the use of midazolam, the controversial drug used in several botched lethal injections. When the Supreme Court ruled against them, new execution dates were set almost immediately.  

Richard Glossip, the lead plaintiff in the case, is now scheduled to be the first executed, on Sept. 16. 

The plaintiff's attorneys are now arguing in their petition for a more basic reason to eliminate the death penalty: Glossip is innocent. 

"That’s what I wanted them to do them the first time," Glossip told The Huffington Post by phone Friday of his attorney's argument. "We’re fighting. That’s all that matters." 

The petition argues that the plaintiffs "exemplify important reasons why the death penalty is unconstitutional." 
Glossip, who has been on death row for 18 years, has always maintained his innocence. Despite having no criminal past and no forensic evidence to condemn him, he was convicted solely on the testimony of a convicted murderer who cut a deal to save himself. 
In the case of plaintiffs John Grant and Benjamin Cole, attorneys argue that arbitrariness, delay and dehumanization are other factors that make the death penalty unconstitutional -- all issues Breyer noted in his dissent as well. 
Grant, for instance, was represented by an attorney who the petition says was "self-medicating for untreated bipolar disorder" and quickly married and then divorced her co-counsel in Grant’s case, all during his trial. The attorney was later suspended from practice and ultimately resigned from the bar. 

"It would be appropriate for the Court to use this case to address the constitutionality of the death penalty because the outcome will turn not on facts specific to any single litigant, but on circumstances common to the administration of the death penalty," the petition reads. 

Breyer wrote in his dissent that the “circumstances and the evidence of the death penalty’s application have changed radically” since the court upheld the constitutionality of the death penalty nearly 40 years ago.

The unusually fiery oral arguments in Glossip v. Gross were only a warmup to the scathing dissenting opinions the liberal justices would eventually pen -- opinions Justice Antonin Scalia dismissed as "gobbledy-gook."

“It’s a long shot, but the Breyer dissent was inviting people to challenge the death penalty," Kathleen Lord, one of Glossip's attorneys not involved in the latest Supreme Court filing, told The Huffington Post Friday. "They just accepted the invitation."   

Also on HuffPost: 

No Seconds: The Last Meals Of Death Row Prisoners