Larry French

Richard Glossip has eaten two last meals and ordered three. When his execution by the state of Oklahoma was stayed for the third time last Wednesday, he was mere feet from the chamber where a lethal injection was to be administered. The state was minutes away from using an untested deadly cocktail, having acquired a drug that is not currently within Oklahoma's legally approved protocol. As of Friday, three scheduled executions, including Glossip's, are stayed indefinitely as the injection drugs are investigated.

Ineptitude, not mercy, means Glossip is still alive. Oklahoma State Penitentiary obtained a box of potassium acetate rather than potassium chloride, approved despite its failure to fully anesthetize a death row inmate in 2014. It was a "mix-up" that forced home the point well made by Supreme Court Justice Stephen Breyer in a bold dissent, which questioned the constitutionality of the death penalty tout court. He argued the point, which Glossip's case apotheotically highlights: that capital punishment is meted out all too arbitrarily and inconsistently, and is carried out unreliably, thus meeting the conditions of cruel and unusual punishment. It's time to stop "try[ing] to patch up the death penalty’s legal wounds one at a time,” he wrote.

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Glossip's ongoing ordeal indexes and illustrates the current Kafka-esque state of capital punishment in America, and has thus emerged as a potential watershed moment for its legality. The "mix-up" which I'll sadly suggest has delayed his death rather than saved his life (Oklahoma remains set on killing their capitally condemned) drove home Breyer's argument. Here we have a man, on death row for 18 years, believed to be innocent by a large number of people, convicted with the gravest punishment on a paper thin case. Glossip was sentenced to die for the 1997 murder of Oklahoma City motel owner Barry Van Treese, based almost entirely on the testimony of the confessed killer, a 19-year-old motel maintenance worker, Justin Sneed. Sneed admitted that he beat Van Treese to death with a bat, but said that Glossip made him do it. In exchange for testimony against Glossip, Sneed was given a life sentence, which he is serving at a medium security state prison.

Then, in terms of carrying out the questionable capital sentence, we have a state scrambling with execution methodology in the ongoing controversy about the contents and reliability of lethal injections, since the EU's 2012 moratorium on the once relied upon anesthetic. In the wake of the shortage, a number of chilling state killings have been carried out. Most notably, Clayton Lockett's execution, also in Oklahoma, using a previously untried lethal cocktail took 1 hour and 44 minutes; for 43 of those minutes, Lockett groaned and writhed before eventually dying of a heart attack. The chemicals used in Lockett's injection were those okayed for use to kill Glossip. There are further horror stories: When authorities in Ohio administered an untested drug cocktail to Dennis McGuire in January, he appeared to gasp for air for 26 minutes before dying. A week earlier in Oklahoma, Michael Lee Wilson exclaimed "I feel my whole body burning” when an injection developed in an unregulated compounding pharmacy sent him to a slow death.

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There's one sure way to end painful experimental executions, and that is to end executions. Short of this, we are confined to a ghastly calculus in which the ideal outcome is a quick death, and that is after a punishing time has been spent on death row. We shudder at the Islamic State practice of taking prisoners out and carrying out mock executions before the actual murder is performed. But Glossip has been told three times that he is living his last day. "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." Perhaps an Islamic State comparison is rhetorically extreme, but I'll stick with it, submitting that little is more extreme that Oklahoma's treatment of Glossip.

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The most interesting element of Justice Breyer's anti-death penalty argument, illustrated by Glossip's case, is that the more efforts made by states to alter execution methods to fit within current standards of justice, the more unjust it proves to be—as the number of exonerations grows. Injustice is also compounded as it is mitigated: people spend years imprisoned and awaiting execution, in order to exhaust every appeal the system provides. The average time a death row convict waits between sentencing and execution is 15 years. One quarter of these inmates die before their execution dates—in state hands, to be sure, but not directly by state hand. A penological ideology that purports to seek truths about guilt and innocence sits ill with a penological ideology that seeks to carry out absolute, mortal punishments.

The Supreme Court's worst thinker, arch-conservative Antonin Scalia, inadvertently raised this confusion about penological purpose in his critique of Breyer's opinion. Scalia complained that the death penalty as punishment wasn't at fault, even if convictions are faulty. It seems like a crass point. What sort of archaic justice system would maintain a punishment of complete finality, with an awareness that it convicts innocent people?

The answer of course is our archaic system. Scalia's comfort with this betrays, once again, his dangerous commitment to legal procedure as a self-correcting mechanism. But where Breyer and Scalia agree has been largely overlooked in the commentary praising Breyer's death penalty argument: Both justices asserted the legal system's unreliability when it comes to rightful convictions. One of the strongest grounds for challenging capital punishment should prompt further critiques of the entire justice system.