Wolf Blitzer interview with Justice Stephen Breyer on revisiting the death penalty _00010006.jpg
Justice Breyer on revisiting the death penalty
01:36 - Source: CNN

Watch Wolf Blitzer’s interview with Stephen Breyer on CNN’s Situation Room at 5 p.m. ET

CNN  — 

If Oklahoma puts Richard Glossip to death Wednesday, it will be the first time the controversial execution drug Midazolam has been used since a bitterly divided Supreme Court allowed its use in June over the objections of two justices who said the entire system of capital punishment should be re-examined.

Without addressing the Glossip case in particular, Supreme Court Justice Stephen Breyer laid out his general concerns about the death penalty in a new interview with CNN’s Wolf Blitzer.

Glossip’s lawyers, meanwhile, are making frantic last minute claims of innocence, pointing to what they say is new evidence that would exonerate him. The lawyers, while unable to argue against Midazolam, are likely to file a flurry of other claims before Wednesday’s deadline.

The attorneys have asked Gov. Mary Fallin for a 60-day reprieve based on the new evidence of innocence they say they discovered in the past two weeks. Supporters of Glossip include death penalty activist Sister Helen Prejean and actress Susan Sarandon.

“Although the use of Midazolam in this case has already been decided, the case raises very thorny questions about whether Oklahoma will be executing a potentially innocent man with a potentially tortuous drug,” said Robert Dunham of the Death Penalty Information Center. Dunham says that since the ruling other executions have occurred but Midazolam was not a part of the protocol.

Midazolam, is used in a handful of states. It is meant to cause unconsciousness but its critics say that it fails to produce a deep coma-like unconsciousness necessary to prevent a prisoner from feeling the painful effects of the other two drugs in the protocol.

The case is also notable for the dissent that Justice Stephen Breyer issued on the last day of the Court’s term. Joined by Justice Ruth Bader Ginsburg, Breyer said, for the first time, that he thought it was time for the Court to revisit the constituionality of the death penalty. Although, in the past, some justices have said the death penalty is unconstitutional, no current sitting justice has said so.

In an interview with Wolf Blitzer, Breyer reiterated his concerns about the punishment’s reliability, and his belief that it is being arbitrarily imposed. “I think, it’s time to revisit the issue,” he said.

“What I wrote in the opinion - first to suggest sometimes its the wrong person. Second, if you look at who is actually executed it seems pretty arbitrary,” said Breyer. “Third, if you look at the average length of time it takes from the time a person is sentenced to death to the time of execution - 18 years now.”

“18 years before there is an execution,” he repeated. “And if you look at the number of executions, it’s fallen dramatically and they’re almost all in a handful of counties.”

The death penalty, said Breyer, has changed since the decision that made it legal again.

“This is not what people expected when they wrote the cases upholding the death penalty more than 40 years ago,” he said.

Glossip was convicted for the 1997 murder of Barry Van Treese. Last June Attorney General Scott Pruitt praised the Supreme Court’s decision that went against Glossip and two other plaintiffs.

“The families in these three cases have waited a combined 48 years for justice.” he said.

Editor’s note: A previous version of this story incorrectly stated that Van Treese’s murder occurred in 1977, instead of 1997.