Execution (of a Person) is a Misleading Term

The Supreme Court recently granted cert in Glossip v. Oklahoma. If the name "Glossip" sounds familiar, that's because this is Richard Glossip's second case on the SCOTUS plenary docket. He was one of three petitioners in Glossip v. Gross, which was a challenge to Oklahoma's use of the sedative midazolam as one of three drugs in its lethal injection execution protocol. Here's how Justice Sotomayor described the issue in her dissent in that case:

The State plans to execute petitioners using three drugs: midazolam, rocuronium bromide, and potassium chloride. The latter two drugs are intended to paralyze the inmate and stop his heart. But they do so in a torturous manner, causing burning, searing pain. It is thus critical that the first drug, midazolam, do what it is supposed to do, which is to render and keep the inmate unconscious. Petitioners claim that midazolam cannot be expected to perform that function, and they have presented ample evidence showing that the State’s planned use of this drug poses substantial, constitutionally intolerable risks.

But that was a dissent. The majority, in an opinion by Justice Alito, said that because the petitioners hadn't made a sufficient showing that the Oklahoma protocol was substantially crueler than the alternative available means of execution, their Eighth Amendment challenge failed. Adding what we might call a Foucaultian twist to the jurisprudence, Justice Alito said that a successful challenger to a method of execution must propose his preferred method.

That was in 2015, but Oklahoma has not executed Glossip yet, and the new case concerns not how it executes him but whether it may do so based on his 2004 murder conviction. The chief evidence at trial against Glossip (who has consistently maintained his innocence) was the testimony of Justin Sneed, the man who actually killed (by bludgeoning) the victim but said that he did so because Glossip hired him to. The issue now before the Court is whether the state violated Glossip's Brady rights by withholding and misrepresenting evidence about Sneed's mental health. Glossip is backed by what we might regard as expected amici--like the Innocence Project--but also by an unexpected amicus--the state of Oklahoma as represented by its Republican Attorney General (and Paul Clement assisting on the brief).

Hold on. The case is captioned Glossip v. Oklahoma. You might wonder: if both the petitioner and respondent agree (as they do) that Glossip's Brady rights were violated and that he is thus entitled to a new trial, how are there adverse parties as required by Article III's case-or-controversy requirement? Good question. I wondered the same thing.

To be sure, there will be adversarial presentation of arguments. The victim's surviving family members and the Oklahoma District Attorneys Association oppose Glossip's position. Represented by former federal judge Paul Cassell at the cert stage, they will no doubt contest Glossip's substantive claims at the merits stage as well.

But the presentation of opposing views is only one element of a concrete case or controversy. There also has to be a dispute between the parties. And here the parties--Glossip and the state of Oklahoma--are on the same side.

Maybe you're thinking that this is one of those enforce-but-don't-defend cases? Recall that after Attorney General Eric Holder concluded that Section 3 of the Defense of Marriage Act (DOMA) was unconstitutional, the Obama administration stopped defending it in court. However, to ensure that there would be live cases or controversies with which to secure a definitive ruling, the administration continued to enforce DOMA §3. The tactic worked. In United States v. Windsor, the Supreme Court held that the administration's enforcement of DOMA §3, coupled with its vigorous defense by the Bipartisan Legal Advisory Group (which effectively comprised House Republicans), satisfied Article III; the Court went on to hold  DOMA §3 was indeed unconstitutional, foreshadowing its later ruling that there is a constitutional right to same-sex marriage.

Accordingly, I looked for evidence that something similar might be going on in Glossip. In Oklahoma, as in most states, the Attorney General is elected separately from the Governor. Maybe the AG agrees with Glossip that a Brady violation at his trial voided the result but the Governor or someone answerable to the Governor rather than the AG thinks otherwise and thus plans to proceed with the execution? I reviewed the documents filed in the case but found no suggestion to that effect whatsoever. Rather, it appears that the executive branch of the state of Oklahoma is united in agreeing with Glossip that his conviction and sentence cannot stand.

So what's going on? That brings me to the title of today's essay. As a matter of basic U.S. civics as well as semantics, we think it is the responsibility of the executive branch of government to execute the law. However, as applied to the execution of a human being, the term is somewhat misleading. True, the hangman (or his equivalent for lethal injection) is either in or hired by officials in the executive branch, but in doing his work, he and everyone else in the executive branch act at the direction of the judiciary.

Upon concluding that Glossip's Brady claim was meritorious, Oklahoma executive officials could not simply refrain from executing him and conduct a new trial. Rather, they had to seek (along with Glossip) a reversal of the conviction, and to do that they had to go to court. They did exactly that, but the highest court in Oklahoma to consider the claim rejected it on both procedural and substantive grounds.

Wait. Why did the AG need to go back to court? As the prevailing party, why couldn't the state simply waive its victory in the earlier litigation against Glossip once the AG concluded that there was indeed a Brady violation? The answer is that a death sentence (or any criminal sentence) is like an injunction in a civil case. Once entered by a court, it requires the court's permission to be lifted.

Suppose Sue thinks that her neighbor Ned is using his property in a noxious way by converting it into a parking lot for home football games on weekends in the fall season. Sue might talk to Ned and they could agree to terms by which Ned ends or limits that use. Thereafter, they could voluntarily modify those terms. However, if Sue sues Ned to abate a nuisance and wins an injunction against Ned, that injunction can be lifted only by the court that issued it (or a reviewing court). Even if Sue and Ned agree to new terms inconsistent with the injunction, they cannot implement those terms without judicial approval.

A death sentence, indeed any criminal sentence, operates more or less the same way. It emanates from the court. (That point is underscored by the fact that even in issuing the sentence, the court will treat a plea deal--in which the prosecution and defense agree to a sentence--as a mere recommendation. Judges have been known to impose either lighter or harsher sentences than what was agreed to in the plea deal.)  The sentence can be understood as an order to the state, not just the disposition of the case.

Readers might be wondering why the state didn't circumvent the courts through clemency. The answer to that question appears to be that Oklahoma law provides no vehicle for doing so in the way the state would want. The Governor can issue a pardon, but that would preclude a retrial, and while the state agrees that Glossip's trial was unconstitutional under Brady, it does not accept Glossip's claim of innocence; it would like to retry him. The Governor also has the power to commute Glossip's sentence from death to life imprisonment, but that's also inapposite, because the error occurred at the guilt phase of the trial; a lighter sentence would not cure that error.

Having satisfied myself that I know what's going on with the odd procedural posture of this case, we are left with a mystery. Because this is not an enforce-but-don't-defend case, we still don't appear to have adversarial interests between the parties. The state wants the same thing from the Supreme Court as Glossip does: invalidation of his conviction. It's true that the state also wants to retry Glossip, who would undoubtedly prefer that he simply be set free. However, there are no questions raised in Glossip's cert petition that could remotely give rise to a ruling that Glossip cannot be retried. So while the state and Glossip are at odds over an important matter, they are not at odds on anything in this case. This appears to be only half a Windsor.

Nor is the case quite like Dickerson v. United States. There, the Solicitor General declined to defend the Fourth Circuit's conclusion that a federal statutory provision purporting to overrule Miranda v. Arizona was constitutionally valid and so appointed an amicus (the same Paul Cassell now appearing for the victims and district attorneys in Glossip!) to advance that argument. However, in that case, the government was adverse to Dickerson, because it offered a different rationale for affirming the Fourth Circuit.

Nonetheless, even when the government does not offer an alternative ground for sustaining the judgment below and simply confesses error, the Supreme Court has sometimes gone on to consider the merits. As (now-)Professor Michael Morley explained in a helpful 2014 law review article, the Court's practice has changed over the years in such cases, but it has never decisively held that there is no live Article III case or controversy when the parties agree about the proper disposition of the case. How that is consistent with the Court's broader case-or-controversy jurisprudence is an enduring mystery.

Postscript: Thanks to Professor Marty Lederman for helping me think through some of the questions addressed here. Errors, of course, are wholly my own.