Justice Breyer Couldn't Save Richard Glossip, But He Won The Day Anyway

Oklahoma's disastrous lethal-injection protocol shows he was right about the death penalty all along.

When lawyers for Richard Glossip filed a last-minute request with the Supreme Court late Tuesday to halt his execution, the justices were already familiar with his name.

In June, a splintered court rejected a constitutional challenge Glossip and other death-row inmates had mounted against Oklahoma's lethal-injection scheme -- specifically, the use of midazolam, a sedative they said was ineffective at preventing excruciating pain. 

A number of botched executions lent weight to the prisoners' claim. They took place in the same McAlester, Oklahoma, penitentiary that neglected to get the correct drugs the day of Glossip's scheduled execution -- a failure of protocol that forced Gov. Mary Fallin (R) to call the whole thing off and the attorney general to urge a court to suspend any future executions.

Oddly, none of this incompetence would have come to light had the Supreme Court heeded the voice of the lone justice who would've spared Glossip's life on Wednesday: Stephen Breyer.

The court's short, unsigned order didn't explain why there weren't enough justices willing to grant Glossip a stay of execution, and we'll likely never know. But it did note Breyer would have, and that willingness tells us something about the whole Glossip drama, and maybe even the future of the death penalty in America.

Anti-death penalty activists rally outside the Supreme Court on Sept. 29, 2015, in a final attempt to prevent the execution o
Anti-death penalty activists rally outside the Supreme Court on Sept. 29, 2015, in a final attempt to prevent the execution of Oklahoma inmate Richard Glossip in Washington, D.C.

When a divided Supreme Court first ruled against Glossip and the other inmates in Glossip v. Gross, as the lethal-injection case came to be known, it was the last day of a historic year for the court -- with gay marriage, Obamacare and other landmark disputes already resolved.

But if those cases already caused deep disagreement among the justices, the Glossip case did even more so. 

From oral arguments up to the very day it was decided, Glossip exasperated the conservatives on the court. Watching the case unfold, there was a sense that they viewed the litigation as no more than a coordinated attack -- or in the words of Justice Samuel Alito, a "guerilla war" -- by death-penalty opponents against Oklahoma's democratic choice to put people to death using whatever drugs it could get its hands on.

"Now, this court has held that the death penalty is constitutional," Alito reminded Glossip's lawyer at a hearing in April. "It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty."

That was the formalistic view that ultimately prevailed in the case: Call on your legislator, not the courts. But Breyer disagreed with that view. In a historic dissent -- joined by Justice Ruth Bader Ginsburg -- that ended up grabbing all the headlines, he said the Supreme Court "had a judicial responsibility" to address the dysfunction of the death penalty. He may as well have been one of the abolitionists himself.

To Breyer, Glossip wasn't a case about drug cocktails or even state prerogatives, but about "a more basic question": whether "the death penalty, in and of itself, now likely constitutes a legally prohibited cruel and unusual punishment."

U.S. Supreme Court Justice Stephen Breyer said in a historic dissent that the court "had a judicial responsibility" to a
U.S. Supreme Court Justice Stephen Breyer said in a historic dissent that the court "had a judicial responsibility" to address the dysfunction of the death penalty.

 "Cruel and unusual" is what the Eighth Amendment forbids. And so in the span of 41 pages and armed with research studies and statistics, Breyer addressed how the systemic failures of capital punishment, in the aggregate, violate the constitutional mandate.

"Cruel—Lack of Reliability," or the sheer number of individuals who are wrongfully sent to death row for crimes they didn't commit. "Cruel—Arbitrariness," or how states dole out death sentences based on no readily identifiable standard, including the whims of prosecutors, factors such as race or gender, or a failure to condemn even the "worst of the worst." "Cruel—Excessive Delays," or the lengthy wait periods inmates are made to endure on death row, which in turn calls into question whether the death penalty even serves a penological purpose. "Unusual—Decline in the Use of the Death Penalty," or how these sentences are concentrated in a handful of counties across the United States.

Each of these "constitutional defects," taken together, "concern the infliction—indeed the unfair, cruel, and unusual infliction—of a serious punishment upon an individual," Breyer reasoned.

Breyer's bold announcement infuriated Antonin Scalia. The conservative justice had no reason to say anything in the Glossip case -- he agreed with everything the majority said about Oklahoma's lethal-injection protocol -- but he felt the need to respond and aim all his darts at Breyer, whom he called "the Drum Major in this parade" to abolish the death penalty.

And maybe he is. Because to this day, his words on the matter are still resonating. In an interview with MSNBC that aired Friday, Breyer echoed much of what he wrote in Glossip and again recounted the ills of state-sponsored killing, comparing its arbitrariness to "being hit like lightning 40 years later."

"All that put together convinced me that there is a good case to be made" under the Constitution against the death penalty, Breyer said, and "that the court should hear the case."

That was the same Breyer who, on Wednesday, was the only one on the Supreme Court willing to stay Glossip's execution -- if only, perhaps, to spare him from a regime the justice now believes to be at odds with the Constitution.

In an interview with The Huffington Post on the day of his now-cancelled execution, Glossip spoke of the agony of waiting for Oklahoma to kill him -- a delay spurred, as reports have shown, by the state's own ineptitude.

"I've been in here almost 18 years and [this] was the worst I’ve ever had to go through," Glossip said. "It was pure torture, I'm not gonna lie."