Jurisprudence

The Vindication of Stephen Breyer

In a 2015 dissent, the justice warned that the death penalty was cruel and unusual. The story of the man at the center of that Supreme Court case explains why.

Stephen Breyer standing while wearing Supreme Court robes
Photo illustration by Slate. Photo by Saul Loeb/Pool/Getty Images.

On June 30, Justice Stephen Breyer retired from the Supreme Court after nearly 28 years. The next day, the state of Oklahoma set a Sept. 22 execution date for Richard Glossip, the man whose case was at the center of Breyer’s most powerful dissent. In 1998, a jury first convicted Glossip of murder and sentenced him to death. More than two decades later, the details of his case and the long and winding road the state has taken toward an execution has vindicated Breyer’s 2015 dissent in Glossip v. Gross. At the time, the court’s conservative majority rejected Glossip’s claims that Oklahoma’s lethal injection protocol violated the Eighth Amendment’s provision against cruel and unusual punishment. Breyer vehemently disagreed. Though he did not write directly about Glossip’s case in his dissent, everything that has been learned about Glossip’s story since 2015 further validates Breyer’s concerns about the cruel and unusual nature of the death penalty in the United States.

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In the dissent, Breyer made a definitive case for why the death penalty “is the antithesis of the rule of law.” His argument rests on three key factors: 1) that there is “convincing evidence” that “innocent people have been executed,” 2) that the death penalty is arbitrary in its application, and 3) that excessive delays in carrying out executions amount to an “especially cruel” form of punishment.

By 2015, the use of death penalty was already declining. The decreasing number of people being executed and sentenced to death aren’t “just annual blips in statistics,” as Robert Dunham, Death Penalty Information Center’s executive director, wrote in an 2015 annual report on the state of the death penalty. Instead, Dunham stated, the decline reflected “a broad change in attitudes about capital punishment across the country.” In other words, many states appeared to agree with Breyer’s analysis, opting against sentencing their residents to death.

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Still, some states, like Oklahoma, have resisted the national trend. In 2016, for example, Oklahoma voters overwhelmingly approved a ballot measure adding several sweeping protections for the death penalty into the state constitution’s bill of rights. In addition to giving the legislative branch total authority to “provide for any method” of execution, the measure stripped the state courts of their authority to stop or delay an execution in order to determine if the death penalty amounted to cruel and unusual punishment.

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Now, the state plans to carry out an execution of a man many presume to be innocent. When, earlier this month, the Oklahoma Court of Criminal Appeals scheduled Glossip’s execution to be the second in an unprecedented-for-the-state spree of 25 executions in less than two years, it was going against the recommendations of an independent inquiry into Glossip’s case. For years, Glossip has maintained his innocence. And the independent inquiry into his conviction has found new evidence to support his claims. “No reasonable jury, hearing the complete record and the uncovered facts detailed in this report, would have convicted Richard Glossip of capital murder,” the lead investigator said during a press conference in June.

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Glossip faces steep odds of salvation. His fate now lies in the hands of the same courts that have repeatedly rejected his previous claims, which makes his last-ditch appeals a long shot despite new evidence and a large number of high-profile supporters—including dozens of Republican legislators in Oklahoma. 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.

“Innocent People Have Been Executed”

One of Breyer’s main objections to the death penalty stemmed from the fact that new evidence had shown states had executed innocent people, rendering the death penalty unreliable. “There is increasing evidence,” he wrote, “that the death penalty as now applied lacks … requisite reliability.”

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He continued:

For one thing, despite the difficulty of investigating the circumstances surrounding an execution for a crime that took place long ago, researchers have found convincing evidence that, in the past three decades, innocent people have been executed.

Breyer cited a handful of cases, including those of Cameron Todd Willingham and Carlos DeLuna, who were both executed in Texas and have since been the subject of epic journalism projects that demonstrated their almost-certain innocence. In addition, Breyer points to the death row inmates who have been exonerated by DNA and other evidence before their executions could be carried out—a number that now stands at more than 180.

“Exonerations occur far more frequently where capital convictions, rather than ordinary criminal convictions, are at issue,” Breyer noted, adding that research shows death penalty exonerations hovered around 4 percent at the time. Richard Glossip is fighting to be part of that small percentage.

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The murder for which he is scheduled to be put to death in September was undisputedly performed by another man, Justin Sneed. Glossip was only identified by Sneed after detectives repeatedly named him as a key suspect in the murder of Barry Alan Van Treese. Sneed beat Van Treese to death with a baseball bat in a room of the Oklahoma Best Budget Inn that Van Treese owned and where both Sneed and Glossip worked in 1997. By implicating Glossip in the murder, detectives offered Sneed an avenue to spare his own life. That confession tape—in which Sneed eventually comes up with multiple nonsensical justifications for claiming Glossip masterminded Van Treese’s murder—was inexplicably never shown to the second jury that convicted Glossip and sentenced him to die in 2004, after his first trial was thrown out for ineffective assistance of counsel.

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The strongest evidence against Glossip, aside from Sneed’s testimony, is the fact that he admitted in a long interrogation to helping Sneed cover up the crime after the fact and to conduct which could be considered accessory after the fact to murder, as well as testimony that he initially covered up his own involvement in the attempted cover-up of the crime.*

In the past several years, Glossip’s legal team has gathered dozens of affidavits from witnesses who were never interviewed by police and cellmates of Sneed’s who have pointed to other, more plausible scenarios for how and why Sneed killed Van Treese. Some witnesses say that Sneed—a heavy user of methamphetamines and other drugs at the time of the killing—was prone to violence and had robbed others to support his drug habit. Some of those who were incarcerated with Sneed say he confessed to doing the murder on his own and to pinning it on Glossip to escape his own death sentence—claiming that it was just a robbery attempt that got out of hand.

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Even the chief detective in the case, Bob Bemo—one of the fiercest advocates for Glossip’s guilt at trial and to this day—suggested on camera that Sneed’s murder of Van Treese was not premeditated, as the state’s case against Glossip claims that Sneed just got “carried away” in the midst of a robbery.

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Bemo’s accidental confession—that his own theory of the murder as premeditated is not the most plausible one—is crucial. In February of this year, a bipartisan group of Oklahoma legislators asked the law firm Reed Smith to investigate Glossip’s innocence claims. In June, the firm released its findings. In a 259-page report, the investigators pointed out:

Not intending to kill someone and “getting carried away” after being hit, by definition, is not a murder for hire nor is it a planned murder and, had the jury heard this statement from the lead homicide detective, it may well have changed the course of events.

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If the chief investigator had reasonable doubt that the murder was premeditated and that Glossip was involved, then so might a jury. This investigation also found that prosecutors had intentionally ordered the destruction of potentially critical evidence in the case prior to Glossip’s second trial. Despite these findings, Oklahoma went ahead and set Glossip’s execution date a just few weeks after the report was released.

“No Rational Explanations”

For Breyer, the “arbitrary imposition” of the death penalty as punishment represented “the antithesis of the rule of law.” In 1976, when the Supreme Court reinstated the constitutionality of the death penalty in Gregg v. Georgia after a four-year pause, it guaranteed that the death penalty would never again be “inflicted in an arbitrary and capricious manner.”

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But decades later, that promise had been broken. Breyer wrote:

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Despite the Gregg Court’s hope for fair administration of the death penalty, 40 years of further experience make it increasingly clear that the death penalty is imposed arbitrarily, i.e., without the “reasonable consistency” legally necessary to reconcile its use with the Constitution’s commands.

Breyer poured through studies showing the arbitrariness of the death penalty in the United States. One study found that after measuring for the “egregiousness” level of a specific murder, the vast majority of those who found themselves on death row in Connecticut had committed crimes no more egregious than those of dozens of other convicted murderers in the state who had not been given death sentences. Multiple other studies pointed to the fact that the race and gender of the victim are often determinative in who is selected for death row, with white and female victims being more likely to land perpetrators a death sentence than Black or male victims. Another key study cited by Breyer pointed to geography as one of the principal factors in a death sentence, as “the imposition of the death penalty heavily depends on the county in which a defendant is tried” in a given state.

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Once again, Glossip’s experience on death row only underscores Breyer’s findings.

After having his first trial thrown out for ineffective assistance of counsel and having his second lawyer—who won that appeal—forced off the case by shady prosecutorial tactics, Glossip was convicted in a second trial in 2004 of hiring Sneed to murder Van Treese. The state’s case—based almost entirely on Sneed’s testimony that earned him a life sentence in exchange for testifying against Glossip—has been, at various times, that Glossip convinced Sneed to kill Van Treese in order to rob his employer of about $2,000, or to escape being fired by Van Treese for an embezzlement that was never proved, or to “take over” the hotel from Van Treese (depending on which story Sneed was selling).

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Because Oklahoma’s death penalty statute requires proof of an aggravating factor, such as the crime being part of a murder-for-hire scheme, prosecutors needed the murder-for-hire explanation to sentence Glossip to death. Prosecutors got this explanation from Sneed, who, in exchange for his testimony, received a sentence of life in prison despite actually beating Van Treese to death. The arbitrariness of Glossip’s case is self-evident. Never mind the other factors going against Glossip as cited by Breyer’s research, such as the race of the victim and the geography of the crime.

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As Breyer put it in 2015: “The studies bear out my own view, reached after considering thousands of death penalty cases and last-minute petitions over the course of more than 20 years. I see discrepancies for which I can find no rational explanations.”

“Decades of Severe and Dehumanizing Conditions”

To date, Glossip has spent 23 years on death row in solitary confinement.

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In part three of his dissent, Breyer spelled out how the lengthy delay required to guarantee any sort of reliability in a death penalty case is “in and of itself … especially cruel because it ‘subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.’ ”

Citing my colleague Dahlia Lithwick, Breyer pointed to one case in which a death row inmate was given an execution date at least 14 times. “Several inmates have come within hours or days of execution before later being exonerated,” Breyer wrote. “Willie Manning was four hours from his scheduled execution before the Mississippi Supreme Court stayed the execution.”

Breyer might as well have been writing about Glossip in this section. As Rolling Stone reported in August 2021:

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Glossip has found himself on Death Watch three times over the last 25 years. He’s had three last meals, the same four items every time: fish and chips, a Wendy’s Baconator, a strawberry shake, and pizza—Pizza Hut once, Dominos twice. He’s listened as two men have been put to death, botched lethal injections both.

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Notably, Glossip’s most recent execution date came in 2015 after Justice Samuel Alito, writing for a then 5–4 conservative majority of the court, ruled against him and other Oklahoma death row inmates. In Glossip v. Gross, the court decided that Oklahoma’s death penalty protocol was constitutional despite the dangers inherent to an untested drug cocktail. Oklahoma almost immediately screwed up its death penalty procedure after the court greenlit its untested drug protocol. When it came time to execute Glossip that September, he was almost put to death using a different drug cocktail after Oklahoma officials mixed up the wrong drug on his third execution date. Glossip was momentarily spared, but only after Oklahoma officials, according to the Frontier, “briefly considered” using the wrong drug.

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Instead, the state put executions on hold for the next six years as it tried to sort out its system for executing inmates. After those executions started back up again in 2021, Glossip again challenged the methods of execution involved. He lost in federal court earlier this year. Now he is set for a fourth execution date and a fourth last meal. According to his lawyer, upon hearing the news of his forthcoming execution date, Glossip said, “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.”

“Executions Are Rare”

Despite his fears, Glossip has a few faithful listeners. One of the biggest advocates for Glossip’s release is Republican state Rep. Kevin McDugle. At the press conference announcing Reed Smith’s findings last month, McDugle spoke about how he staunchly supported the death penalty in Oklahoma but would no longer unless Glossip received some form of clemency. “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.

Many states have already won the fight against capital punishment. Gov. Gavin Newsom suspended the death penalty in California in March 2019, New Hampshire repealed its own death penalty in May 2019, and Virginia became the first Southern state to abolish the death penalty in March 2021. With these three states, more states now have either abolished or put in place a moratorium on the death penalty than there are states that have not.

“In a word, executions are rare,” Breyer pointed out in his 2015 dissent. Last year, just 18 people were given the death sentence in the United States and just 11 people were executed, both near-historic lows. That rarity, Breyer argued, cuts against one the of the key remaining cases for the death penalty: its deterrence value. If capital defendants don’t expect to be given a death sentence, then how can it be said to deter capital crime?

“From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning.” Breyer wrote in his prescient dissent. “How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?”

Update, July 14, 2022, 12:40 p.m.: This paragraph has been updated for clarity.

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