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

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Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed it has no other power; it cannot revise the state court judgment; it can act only on the body of the petitioner. [20]

Finally, commutation to life in prison is common and equitable. As Breyer's Glossip dissent points out (at 26):

[A]n offender who is sentenced to death is two or three times more likely to find his sentence overturned or commuted than to be executed; and he has a good chance of dying from natural causes before any execution (or exoneration) can take place. [21]

The long-suffering family and friends of Glossip's victim (assuming arguendo that Glossip is guilty [22] ) should, like almost all others in their wretched position, be able get by with the commutation compromise, directing their anger at the outcome towards the blameworthy state officials. Insofar as they and death penalty advocates at large are disappointed, their remedy lies in the political process. Directly and indirectly, vacating the death penalty would appropriately force and foster procedural and institutional correction.

Thus strictly constitutional, common decency, ordinary equity, and straightforward public policy considerations all weigh in favor of commuting Glossip's death sentence.

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[1] To execute Lockett, not until two days before the execution did Oklahoma find a doctor (Johnny Zellmer) ready and willing to sidestep his Hippocratic help-not-harm oath and the American Medical Association's longstanding (1980) advice that members "not participate in legally authorized executions." See: Lawsuit names McAlester ER physician as execution doctor , Tulsa World, Oct. 14, 2014 (Lockett's family filed suit against state officials and Dr. Zellmer alleging "unsound procedures and inadequately trained personnel"); and Sawicki, Nadia N., Doctors, Discipline, and the Death Penalty: Professional Implications of Safe Harbor Statutes (2008), at16. Lockett's last day began with suicide attempts and tasing. In the execution chamber, numerous injections and increasingly desperate measures failed to halt his evidently conscious struggles and cries. The execution was 43 minutes of increasing chaos. Lockett did not die until ten minutes after the execution had been called off because the drugs ran out. An investigation blamed inexperienced staff using inadequate equipment, including an absurdly short needle. "Well, we'll just have to make it work," Dr. Zellmer reportedly said. They did not make it work. For the gruesome details of what happened behind the suddenly closed curtain, see The Cruel And Unusual Execution Of Clayton Lockett , The Atlantic, June 2015.

[2] U.S. 14-7955, June 29, 2015; rehearing denied August 28.

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[3] U.S. trends, now strongly against the death penalty, are reviewed in Courts, states put death penalty on life support , USA Today. An international perspective is given by Soering v. United Kingdom, 11 Eur. H. R. Rep. 439 (1989), which held that extraditing a capital defendant to America would violate Article 3 of the European Convention on Human Rights, owing to, inter alia, the probable delay before execution. (More generally, in December 2014, 117 UN member states voted for a global freeze on executions; and in September 2015, by a 26-13 vote, with 8 abstentions, the UN Human Rights Council adopted a resolution calling to abolish the death penalty. See Record number of states vote for UN resolution on death penalty, Al Jazeera; and The UN and the Death Penalty.

[4] See 2 Papers of John Marshall 2207-2209 (C. Cullen & H. Johnson eds. 1977), reporting a petition for commutation of a death sentence owing to, inter alia, a five month post-conviction delay. In 1890, re a mere four week delay, the Supreme Court expressed concern that "when a prisoner sentenced by a court to death is confined in the penitentiary awaiting the execution of the sentence, one of the most horrible feelings to which he can be subjected during that time is the uncertainty during the whole of it." In re Medley, 134 U.S. 160, 172.

[5] See, e.g.: Johnson v. Bredesen , 130 S. Ct. 541 (2009) (Stevens, Breyer dissent; Thomas concurrence); Thompson v. McNeil, 129 S.Ct. 1299 (2009) (Stevens opinion; Thomas concurrence; Breyer dissent); Smith v. Arizona , 552 U.S. 985 (Breyer dissent); Foster v. Florida , 123 S. Ct. 470 (2002) (Thomas concurrence; Stevens opinion; Breyer, dissent); Knight v. Florida , 528 U.S. 990 (1999) (Thomas concurrence; Stevens opinion; Breyer, dissent); Elledge v. Florida , 525 U.S. 944 (1998) (Breyer dissent). Breyer cites this Lackey line of dissents in his Glossip dissent, at 19.

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[6] Herein, I am concerned only with the merits of Glossip's individual Lackey claim. Breyer's dissent is primarily concerned with systemic, nationwide delays, which insinuate a distinct Furman arbitrariness claim. Furman v. Georgia , 408 U.S. 238 (1972). The Furman claim arises from the fact that gross delays are systemic, i.e. are the very opposite of unusual. What is unusual is an actual execution. What is cruel/barbaric/repugnant is the all but self-evident arbitrariness of the selection mechanism. A Furman claimant does not protest the agonizing length of his time on Death Row. He protests the capricious chance that it will be shortened. Just such a Furman claim was upheld in Jones v. Chappell, 31 F.Supp.3d 1050 (C.D.C. 2014), per Judge Carney's Order Declaring California's Death Penalty System Unconstitutional And Vacating Petitioner's Death Sentence. This case is pending decision as Jones v. Davis, (9 th Cir. 14-56373). It roundly raises Breyer's "three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays." Glossip dissent, at 2. Arbitrariness and unconscionable systemic delays are put at issue by Jones' Furman claim. The reliability of state death sentences was put at issue by California itself, through affirming as a defense that its post-conviction death penalty delays assure reliability. (In fact, despite the highly deferential standards imposed by the Anti-terrorism And Effective Death Penalty Act of 1996, 60% of California's final death penalty decisions--which for most state habeas petitions comprise postcard denials--are vacated for constitutional error by federal courts. Carney's Order, at 5.)

[7] See Solem v. Helm, 463 U.S. 277 (1983) (life without parole for seven non-violent felonies disallowed). But three-strike laws show how vanishingly weak this limit is. See Rummel v. Estelle, 445 U.S. 263 (1980) (life with parole possible after 12 years for an $80 credit card fraud, a $28 forged check, and $120 obtained by false pretense cruel but not unusual in Texas); Lockyer v. Andrade, 538 U.S. 63 (2003) (two consecutive firm 25 year sentences for stealing videotapes worth $150 from two K-marts in California not clearly disproportionate).

[8] Depending on the state, life on Death Row can ironically be easier, owing to the public focus; and in all states there is a far better chance for an innocent inmate to be exonerated if on Death Row, albeit decades after conviction. An innocence-insistent Death Row inmate and his counsel vehemently opposed a 2012 California proposition to abolish the death penalty, because it was without qualifications. They saw the measure as burying credible Death Row innocence claims. There is a solution. Were the death penalty abolished, the efficaciousness of life-without-parole review processes could be greatly improved by redirecting some of the savings. Billions of dollars have been spent on the state's death penalty, which since 1978 has executed only a freakishly unlucky 13 people, and in 2008 needed another $137 million a year just to keep pace, which it didn't and isn't going to get. See: Carney's Order; California Commission on the Fair Administration of Justice, Final Report: Report And Recommendations On The Administration Of The Death Penalty In California (2008); amicus brief of state legislators (2015) in Jones v. Davis, supra, n. 6.

[9] As Breyer notes in his Glossip dissent (at 22), "given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals.".

[10] Scalia is scalian (Glossip, opinion in response to Breyer's dissent, at 6):

. . .for the past two decades, JUSTICE BREYER has been the Drum Major in this parade. His invocation of the resultant delay [from exhausting appellate remedies] as grounds for abolishing the death penalty calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan. Amplifying the surrealism of his argument, JUSTICE BREYER. . .

[11] Thomas' concurrence in Thompson v. McNeil, 129 S.Ct. 1299 (2009), quoting his prior concurrences.

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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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