Oklahoma AG tells SCOTUS executing Richard Glossip would be "unthinkable"

Oklahoma Attorney General Gentner Drummond, joined by high-profile conservative lawyer Paul Clement, filed a brief on Monday urging the justices to stop the execution, set for May 18.

In an incredibly unusual U.S. Supreme Court filing on Monday, Republican Oklahoma Attorney General Gentner Drummond filed a brief agreeing with the lawyers for Richard Glossip — currently scheduled to be executed on May 18 — that the high court justices must act to save his life.

“Absent this Court’s intervention, an execution will move forward under circumstances where the Attorney General has already confessed error—a result that would be unthinkable,” Drummond’s brief for the State of Oklahoma stated. “In those unprecedented circumstances, this Court should grant the application for a stay of execution.”

What makes this even more unusual, Drummond secured the support of one of the nation’s most prominent conservative Supreme Court lawyers, Paul Clement, to help make the argument.

First, a step back: What’s happening?

In less than three weeks, the State of Oklahoma might kill an innocent man.

If nothing else, current plans in the state are to execute Glossip despite the fact that both Glossip’s lawyers and Drummond agree that Glossip’s trial was so fundamentally unfair that his conviction must be tossed out.

Even the Oklahoma Board of Pardon and Parole split 2-2 on whether to recommend clemency for Glossip. (One member of the five-member board recused themselves and were not replaced.) Republicans in the legislature oppose his execution, as covered in an extensive story last year by Lara Bazelon.

But, despite all of that, because a majority of the board did not recommend clemency, Republican Gov. Kevin Stitt says his hands are tied. The Oklahoma Court of Criminal Appeals also denied Glossip’s request to vacate his conviction or at least grant him a stay of execution, so, again, Stitt says his hands are tied.

That’s not true. Stitt doesn’t need the parole board’s OK or a court’s OK to grant a 60-day reprieve to Glossip — as he has done twice before — but he said that he won’t be doing so this time.

Drummond, elected last fall, has taken a different path, consistently working, basically since taking office, to keep Glossip alive.

He supported Glossip’s request to have his conviction tossed. He supported clemency.

And now, he’s joined Glossip at the U.S. Supreme Court asking for action.

Which brings us back to Monday.

The Republican Attorney General of Oklahoma, Gentner Drummond, and his state solicitor general, Garry Gaskins II, were joined by Paul Clement and another partner at Clement & Murphy, Matthew Rowen, in their filing Monday. (Clement is the former U.S. solicitor general in the George W. Bush administration who defended the Defense of Marriage Act in court and who left Kirkland & Ellis last summer so that he and Erin Murphy could continue representing the gun lobby.)

The filing followed a request from Glossip for a stay of execution as part of a planned request to ask the justices to take up the case denied by the Oklahoma courts in April.

The filing also followed the U.S. Supreme Court granting another of Clement’s cases on Monday — a case that could bring home legal conservatives’ goal of eroding the administrative state and empowering this Supreme Court by reversing a 1984 case, Chevron v. Natural Resources Defense Counsel, that directs courts to defer to agencies’ reasonable interpretations of ambiguous statutes.

That’s a side-issue, a totally different case, and technically not at all relevant here — but I think it’s notable for two primary reasons: (1) the conservative majority just granted a case where Clement is counsel of record that would help the conservative justices advance a primary goal of the conservative legal agenda, so he is, for lack of a better phrase, in their good graces currently, and (2) almost the inverse of that, taking on the Glossip cause (especially when not even needing to represent Glossip) gives Clement a chance to be seen in a positive light many who never expected him to be on their side.

Of course, that also is a way of showing just how extreme this case is — Clement, who has left big firms twice to continue his ideologically conservative representation, is willing to put his name on this brief before the justices — and how illustrative it is of how broken our capital punishment system is (and larger criminal legal system is). Clement isn’t an outlier conservative jumping on board, either. In addition to the other people right-of-center already discussed, Reason, on Monday, published a critical article by Emma Camp looking at the case.

These Republicans — Oklahoma’s attorney and Clement — are going to this 6-3 conservative court asking them to save a man’s life because Oklahoma won’t do anything about it.

A concluding section of Oklahoma’s brief on Monday — laying out “the balance of equities” in the case, the fairness factors, basically — shows how unbelievable, unethical, and inhumane it would be to allow Glossip’s execution to proceed.

The brief also took a step back in its introduction, highlighting a larger point argued by many reform prosecutors in recent years about the prosecutor’s alleged role in our criminal justice system.

As of now, however, no one with the power to stop this execution has done so and Richard Glossip remains scheduled to be killed by the State of Oklahoma at 10 a.m. CT May 18.