Commentary: Richard Glossip’s Case Exemplifies the Systemic Flaws that Justice Stephen Breyer Warned About

As Richard Glossip faces an exe­cu­tion date for the fourth time, his case is a per­fect exam­ple of the prob­lems in the death-penal­ty sys­tem that then-Supreme Court Justice Stephen Breyer (pic­tured) iden­ti­fied in his 2015 land­mark dis­sent in Glossip v. Gross. In an analy­sis pub­lished by Slate, Jeremy Stahl writes, ​“Whether or not Richard Glossip is ulti­mate­ly exe­cut­ed for a crime he like­ly did not com­mit, his and Breyer’s names will be inter­twined in death penal­ty his­to­ry. Glossip’s case is emblem­at­ic of the death penalty’s major trends over the past two decades. And Breyer’s dis­sent in Glossip, with the moral and legal clar­i­ty he evinced, is like­ly to go down as his most pre­scient opin­ion on the court.”

Although Glossip was the lead plain­tiff in a 2015 chal­lenge to Oklahoma’s lethal-injec­tion pro­to­col, the details of his case were not at issue because the ques­tion before the Court addressed the method of exe­cu­tion, rather than the death penal­ty itself. In a dis­sent joined by the late Justice Ruth Bader Ginsburg, Breyer called on the Court to recon­sid­er the con­sti­tu­tion­al­i­ty of the death penal­ty. He wrote, ​“Today’s admin­is­tra­tion of the death penal­ty involves three fun­da­men­tal con­sti­tu­tion­al defects: (1) seri­ous unre­li­a­bil­i­ty, (2) arbi­trari­ness in appli­ca­tion, and (3) uncon­scionably long delays that under­mine the death penalty’s peno­log­i­cal pur­pose. Perhaps as a result, (4) most places with­in the United States have aban­doned its use.” Glossip’s case, Stahl writes, has come to embody those defects.

Breyer argued that Glossip’s strong claim of inno­cence demon­strates the ​“seri­ous unre­li­a­bil­i­ty” of the death penal­ty. An inde­pen­dent review of Glossip’s case com­mis­sioned by a bipar­ti­san group of Oklahoma leg­is­la­tors describes the exten­sive evi­dence of Glossip’s inno­cence. Glossip was con­vict­ed of hir­ing anoth­er man, Justin Sneed, to kill Barry Van Treese, the own­er of the hotel where Glossip worked. Videotape of Sneed’s inter­ro­ga­tion shows that detec­tives men­tioned Glossip six times in the first 20 min­utes, encour­ag­ing Sneed to impli­cate Glossip in exchange for a reduced sen­tence. Glossip’s jury was not shown the inter­ro­ga­tion tape. The inves­ti­ga­tion also revealed a video­taped state­ment by the lead detec­tive in the case, who direct­ly under­mined the state’s the­o­ry of the crime by say­ing Sneed got ​“car­ried away” while rob­bing Van Treese.

Glossip’s case also exhibits arbi­trari­ness in sev­er­al ways. He is undis­put­ed­ly not the per­son who killed Van Treese, and the actu­al per­pe­tra­tor, Sneed, was sen­tenced to life in prison. He was sen­tenced to death in Oklahoma County, one of just five U.S. coun­ties respon­si­ble for 20% of all exe­cu­tions since 1976. The vic­tim was white, which has been shown to sig­nif­i­cant­ly increase the like­li­hood of a death sentence.

The 23 years Glossip has spent on death row and his three pre­vi­ous exe­cu­tion dates bol­ster Breyer’s obser­va­tions about the ​“uncon­scionably long delays” inher­ent in cap­i­tal cas­es. In 2015, Glossip came with­in hours of exe­cu­tion before state offi­cials revealed they had obtained the wrong drug, and the exe­cu­tion was called off. Though delays are nec­es­sary to reduce the unre­li­a­bil­i­ty of cap­i­tal pun­ish­ment, Breyer called them ​“espe­cial­ly cru­el” because of the ​“severe, dehu­man­iz­ing con­di­tions of con­fine­ment.” When Glossip learned the state had set yet anoth­er exe­cu­tion date for him, he told his attor­ney, ​“I’m scared right now that nobody will lis­ten. That nobody will care, that this work has been done to show that I didn’t do any­thing, that I’m not some­body who’s capa­ble of mur­der­ing any­one, and yet they won’t do anything.”

Breyer’s final point, that exe­cu­tions are becom­ing increas­ing­ly rare, remains true in the vast major­i­ty of the United States, even as Oklahoma pre­pares to exe­cute 25 peo­ple over the next two years. If the state does exe­cute Richard Glossip, it may con­tribute to the fur­ther ero­sion of cap­i­tal pun­ish­ment. Oklahoma Representative Kevin McDugle, a Republican and a death-penal­ty sup­port­er, has become one of Glossip’s biggest advo­cates. ​“If we put Richard Glossip to death, I will fight in this state to abol­ish the death penal­ty, sim­ply because the process is not pure,” he said at a June 2022 press conference.