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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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Is the Eighth Amendment's "cruel and unusual" clause actionably violated by Oklahoma's incarceration of Glossip on Death Row for 17 years, the last of which entailed five stays of execution, including three last meals and a full-fledged mock execution?

Order Sealing Glossip's Fate?
Order Sealing Glossip's Fate?
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1. Lackey's Unconstitutional Delay Review Threshold Is Met

For the fourth time in the past year, the U.S. state of Oklahoma has issued a stay of execution for Richard Glossip,. . .convicted [in 1998] for contracting the murder of his boss in 1997. Beyond serious questions of the man's guilt, his multiple brushes with death in such a limited period of time are the equivalent of state-sanctioned mock execution, prohibited under international torture conventions and under U.S. law.

Death row prisoner Richard Glossip's multiple stays of execution may amount to torture , October 1, 2015, Compliance Campaign.

Herein, I do not address Glossip's credible actual innocence claim, which on September 30, 2015 the Supreme Court refused to hear, with only Justice Breyer publicly dissenting. I argue only that Glossip's death sentence could and should be judicially commuted to life in prison, in light of psychological torture now including a mock execution negligently inflicted by Oklahoma's Department of Corrections. As best I can tell from the sources cited, and distinguishing the stays sought in pursuit of and to preserve Glossip's legal remedies ("sought") from stays granted because of problems in the administration of Oklahoma's lethal drug protocol ("unsought"):

Stay 1 (Unsought): Despite the horribly botched execution of Clayton Lockett on April 29, 2014, [1] on May 28 Glossip's execution was set for November 20, 2014, using the same lethal injection protocol. On October 13 Oklahoma Attorney General Scott Pruitt announced that the state did not have the drugs or medical staff needed for the execution, and so on October 24, he obtained a general (three person) stay from the Oklahoma Supreme Court.

Stay 2 (Sought): Glossip's execution date was reset for January 29, 2015. On January 26 Pruitt sought an indefinite general stay while the Supreme Court decided Glossip's lethal drug challenge. The US Supreme Court granted the stay on January 28, after a last meal was ordered (before served).

Stay 3 (Sought) : On June 29, the challenge was rejected in Glossip v. Gross. [2] Glossip's new execution date was September 16. Three hours before the execution, after a second last meal, the Oklahoma Supreme Court granted a two-week stay to consider a last-ditch new-evidence-of-innocence claim.

Stay 4 (Unsought): On the new execution date of September 30, after Glossip's third last meal, the US Supreme Court rejected his claim, and the execution procedure began. A drug mix-up then caused Oklahoma governor Mary Fallin to declare a 37-day stay.

Stay 5 (Unsought): On October 1, the new execution date of November 6 was indefinitely stayed at Pruitt's request, to allow time for a thorough investigation.

As things stand, a new execution date is likely in a few months. But not if the US Supreme Court in due course agrees to hear Glossip's enhanced Lackey claim.

In Lackey v. Texas , 514 U.S. 1045 (1995), the US Supreme Court refused to hear a claim that "some 17 years on death row violates the Eighth Amendment 's prohibition against cruel and unusual punishment." Justice Stevens, joined by Breyer, dissented, arguing that the justifying purposes of retribution and deterrence might be dispositively diluted by such delay; that such delay could extend distress beyond contemporary bounds of decency; [3] and that no such torturously long delay had been countenanced by the Founders. [4] At the same time, Stevens recognized the need to distinguish among delays resulting from (a) abuse of the judicial system by escape or by repetitive, frivolous filings; (b) the legitimate exercise of review rights; and (c) negligence or deliberate action by the state. Although based on the anguish incidental to long and uncertain waiting on Death Row, a so-called Lackey claim depends not only on sheer duration but also on individual particulars, including the causes and nature of the delays.

Today, death penalty petitions routinely include Lackey claims, which state and federal courts routinely dismiss. But the Supreme Court has yet to review, let alone reverse, a dismissed Lackey claim. Lackey claims remain invited by an extraordinary track of opinionated (Stevens, Breyer) dissents to the refusals to review them (i.e. to denials of certiorari), countered by conservative (Thomas) concurrences. [5] The calls for review of a Lackey claim culminated in Breyer's dissent (joined by Ginsburg) in Glossip, which at 17-33 sketched the potential merits of Lackey and related claims under the caption "'Cruel'-Excessive Delays." [6]

In this context, it is reasonable to expect that the Supreme Court will eventually vote to hear some especially egregious Lackey claim. I contend that Oklahoma's negligent mock execution renders Glossip's cumulative Lackey claim sufficiently egregious for the Supreme Court to vote to hear it and then to vacate the death sentence.

2. A Timely Look To Lackey

To violate the Eighth Amendment, a cruel punishment must also be unusual in that state at that time. Everywhere, the eighth amendment prohibits only barbarically disproportionate punishment. [7] An authentic mock execution is of course barbaric, and in this nation is also unusual, by the grace of God and the wisdom of courts.

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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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