The fundamental flaw in our capital punishment practice is arbitrariness in administration. We have noted that race is an arbitrary determinant But the untouchable has been prosecutorial discretion. The result of that is that a handful of prosecutors seek the death penalty. County by county disparity prevents like cases from being treated alike.
Leigh Bienen (Northwestern) developed this point comprehensively in her 1988 study for the New Jersey Office of the Public Defender The Reimposition of Capital Punishment in New Jersey: The Role of Prosecutorial Discretion. The state's Supreme Court responded with a long term program of proportionality review. That sincere but failed effort was rigorous but fundamentally flawed by the failure to confront the issue of statewide disparity of outcomes inevitable where each county prosecutor could make his/her own choice of when to seek the death penalty. Mark Graber at Balkinization discusses the case of Richard Glossip, an emblematic example of the dangers of unfettered prosecutorial discretion. - gwc
by Mark Graber
The Supreme Court’s decision in Glossip v. Gross (2015) cleared the way for Oklahoma to execute a person who may be innocent of murder and for whom Oklahoma admits merits a lesser sentence. The precise issue in Glossip was whether the manner in which Oklahoma executes persons constitutes cruel and unusual punishment. One unfortunate consequence was that no justice mentioned the disturbing facts of Glossip’s case, not even Justice Breyer, who wrote a powerful dissent urging the justices to rethink the constitutionality of capital punishment. In fact, Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.
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Richard Glossip is likely to be executed even though for almost a decade, Oklahoma was prepared to promise Glossip that he would not be executed if he confessed to the crime. Glossip is being executed because he exercised his constitutional right to a jury trial.
In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences. Oklahoma police quickly came to the conclusion that Sneed certainly murdered Van Treese and that Glossip may have solicited the murder. That clear physical evidence demonstrated that Sneed was the perpetrator perversely enhanced Sneed’s plea bargaining leverage. Oklahoma needed Sneed to testify against Glossip. They had no case otherwise. They did not need Glossip to testify against Sneed. The result is that the person who committed a murder beyond all reasonable doubt will not be executed, while the person who may or may not have solicited that murder is out of appeals.
by Mark Graber
In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences.
Balkinization: Richard Glossipby Mark Graber
The Supreme Court’s decision in Glossip v. Gross (2015) cleared the way for Oklahoma to execute a person who may be innocent of murder and for whom Oklahoma admits merits a lesser sentence. The precise issue in Glossip was whether the manner in which Oklahoma executes persons constitutes cruel and unusual punishment. One unfortunate consequence was that no justice mentioned the disturbing facts of Glossip’s case, not even Justice Breyer, who wrote a powerful dissent urging the justices to rethink the constitutionality of capital punishment. In fact, Richard Glossip is Exhibit A for problems of reliability and fairness with the process that sentences people to death, particularly when prosecutors rely heavily on plea-bargaining with one defendant in order to convict a defendant who refused to admit guilt.
***
Richard Glossip is likely to be executed even though for almost a decade, Oklahoma was prepared to promise Glossip that he would not be executed if he confessed to the crime. Glossip is being executed because he exercised his constitutional right to a jury trial.
In sum, Richard Glossip is likely to be executed because capital punishment enhances prosecutorial power to secure unreliable and arbitrary death sentences. Oklahoma police quickly came to the conclusion that Sneed certainly murdered Van Treese and that Glossip may have solicited the murder. That clear physical evidence demonstrated that Sneed was the perpetrator perversely enhanced Sneed’s plea bargaining leverage. Oklahoma needed Sneed to testify against Glossip. They had no case otherwise. They did not need Glossip to testify against Sneed. The result is that the person who committed a murder beyond all reasonable doubt will not be executed, while the person who may or may not have solicited that murder is out of appeals.
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