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Glossip v. The Death Penalty: Does Oklahoma's Negligent Mock Execution Actionably Enhance Glossip's Lackey Claim?

By       Message Clifford Johnson       (Page 3 of 5 pages) Become a premium member to see this article and all articles as one long page.     Permalink    (# of views)   2 comments, In Series: Death Penalty doctrine

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Glossip's execution was postponed to Nov. 6 after he received a fourth stay on Wednesday. . .Glossip's execution was stayed one hour after it was supposed to begin when it was discovered one of the three drugs the state received for his lethal injection was not approved for use in executions in the Oklahoma Department of Corrections' protocol.

(Richard Glossip death penalty case takes another turn, CNN, Oct. 2, 2015):

Richard Glossip was pacing back and forth in his death cell Wednesday afternoon wearing only his boxer shorts and waiting to hear whether the Supreme Court would step in and postpone his execution. The 3 p.m. execution deadline came and went and he heard nothing. But later, a prison guard appeared, asked him to wrap himself in a sheet and took him back to his regular cell with no explanation, Glossip told two of his lawyers"Because Glossip has been on the verge of execution before, he has ordered three "last meals" on separate occasions, Dale Baich [one of his lawyers] said. . .

Knight [also his lawyer] stood outside of the prison with Glossip's family. When they learned that the Supreme Court had denied the request for stay, their hopes plummeted. "We knew at that point our chances in court were over. I had to tell the family, that we were done"" Knight said. And then, as the family mourned, and the deadline passed, they heard someone shout out that Fallin had issued a stay. "We were all gobsmacked," Knight said.

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( Oklahoma Governor Grants Richard Glossip a Stay of Execution , New York Times, Sep. 30, 2015):

[M]ore than an hour after the scheduled execution time, Gov. Mary Fallin intervened, issuing a 37-day stay to address questions about the state's execution protocols. Ms. Fallin said the stay would allow the Department of Corrections and its lawyers to determine whether potassium acetate -- a drug the state planned to use that it had not previously disclosed -- complied with the state's court-approved protocols"officials substituted potassium acetate for potassium chloride, according to Dale Baich, one of Mr. Glossip's lawyers. "This is the first that we learned that the D.O.C. was substituting one of the drugs in the protocol," Mr. Baich said. . . A spokesman for the prison agency denied that they replaced one drug with the other, but said they were still sorting out the details of what happened". . . The stay of Mr. Glossip's execution was particularly unexpected because Ms. Fallin had previously turned down a request from his lawyers to stop the execution [17]. . . [A]bout 30 minutes before Mr. Glossip's scheduled execution at 3 p.m., prison officials said they had not heard from the United States Supreme Court, and they were not proceeding until they received word about Mr. Glossip's request for a stay. . .The pause gave his supporters and lawyers, several of whom gathered outside the prison's front gates, a flash of hope. But minutes later, the Supreme Court issued an order denying Mr. Glossip's appeal, and his relatives sobbed as word spread.

Despite Lockett's hellishly botched execution per a drug protocol nevertheless upheld in a controversial Supreme Court opinion; and despite a state investigation having found basic problems with both staff competence and medical supplies; by subsequently failing to secure the right drugs Oklahoma inflicted on Glossip, on his and his victim's family and friends, on the courts, and on the public, a full-fledged mock execution, at law and in effect equivalent to pulling the trigger on a shockingly blank bullet. This time, "Oops!" is not enough.

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Oklahoma's Department of Corrections begs correction. After the state had in Glossip litigated a three-drug cocktail comprising "midazolam, followed by vecuronium or recuronium bromide, then potassium chloride"--i.e. not potassium acetate, a different drug with different effects--i n an August 11 letter the department informed Glossip's counsel that the drugs for execution were already secured, although the protocol itself did not require the signed and dated securing of all essentials until forty-eight hours beforehand, and although the actual practice was to rely on a two-hours-in-advance drugs delivery. To save face, it appears that an official pointed to a rule that barred overnight prison storage of the substituted drug; but it turned out that the only such rule was for another drug, and even that rule was circumventable simply by assigning the drugs to the condemned inmate. [18]

It cannot be gainsaid that Oklahoma's procedures for carrying out the death penalty are appalling. More than another quick and dirty investigation is required. On October 1, Glossip's 37-day stay was indefinitely extended at the request of Pruitt, to allow time to investigate why, only two hours before the execution, the prison "received potassium acetate as opposed to potassium chloride ." [19] Although this further stay of course does not rise to the indecent level of a mock execution, the one-day imposition of a November 6 death date was essentially gratuitous. That this follow-on cancelation seems so slight an offence underscores the gravity of the preceding mock execution, and evidences the ugly confusion that then reigned.

4. Glossip's Enhanced Lackey Claim Warrants Commutation

Breyer and Ginsburg propose that the Supreme Court consider a Lackey- like claim re the torture of repeatedly and lately revoked death warrants (Glossip dissent at 21; emphasis in orig.):

[W]e must consider death warrants that have been issued and revoked, not once, but repeatedly. See, e.g., Pet. for Cert. in Sua'rez Medina v. Texas, O. T. 2001, No. 02-5752, pp. 35-36 (filed Aug. 13, 2002) ("On fourteen separate occasions since Mr. Sua'rez Medina's death sentence was imposed, he has been informed of the time, date, and manner of his death. At least eleven times, he has been asked to describe the disposal of his bodily remains"). . .(John Thompson had seven death warrants signed before he was exonerated). . .(former Pennsylvania Governor signed 36 death warrants in his first 3.5 years in office even though Pennsylvania has not carried out an execution since 1999)"...Several inmates have come within hours or days of execution before later being exonerated. Willie Manning was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution. . .

Glossip is not a fourteen-count revokee, but his five-in-a-year revokee standing includes three unsought stays, three last meals, and one full-fledged mock execution.

Not even Thomas doubts that a punishment of mock execution(s) plus actual execution is forbidden by the Eighth Amendment , as cruel and unusual. Accordingly, after a mock execution has been culpably inflicted, to follow on with an actual execution would result in a cumulative punishment that the constitution strictly forbids. Moreover, the unconstitutionality can only be avoided only by vacating the sentence of death. Wherefore, commutation of the sentence to life in prison is required by the Eighth Amendment.

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Besides, by its ultimate toying with the heart of hope, a mock execution is an ultimate indecency, which nothing short of vacating the death sentence can cure. Indeed, a subsequent execution would cap the offence and the offense.

To follow on with an actual execution would also be to signal that a state is not held to any serious standard of care in administering executions. Public policy calls for commutation to life in prison in order to meaningfully guard against continuing and worsening abuses in administering the death penalty, for no nuanced alternative is allowed:

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Clifford Johnson is a semi-academic naturalized Brit. He first entered the U.S. as a rah-rah Harkness Fellow. For theater, language, and also as a questionable ex-Brit, Johnson adopts a Tom Paine II persona. His activist credentials comprise serial (more...)

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