In 2008, the Court rejected a challenge to the three-drug protocol that Kentucky used to carry out executions by lethal injection, holding that it did not violate the Eighth Amendment’s prohibition on cruel and unusual punishment. In that case, inmates had unsuccessfully argued that there was a risk of serious pain if the protocol was not followed properly. Today, in a decision marked by deep divisions among the Justices, the Court rejected a new lethal injection challenge – this time to Oklahoma’s use of a drug called midazolam, a sedative normally used to treat anxiety. Let’s talk about the decision in Glossip v. Gross in Plain English.
Midazolam is the first drug in the three-drug cocktail that Oklahoma uses to execute prisoners. The second and third drugs, which are not at issue in the case, are then used to paralyze him and stop his heart. A group of death-row inmates had argued that the use of midazolam as the first drug violates the Constitution because it cannot reliably render the inmate unconscious; if he is not unconscious when the second and third drugs are administered, he will suffer serious pain from the third drug, but no one will know because the second drug will prevent him from moving at all.
After a series of highly publicized botched executions, including one in Oklahoma last year, death penalty opponents welcomed the Court’s announcement that it would review this new lethal injection challenge. Perhaps, the conventional wisdom went, the Justices were finally so frustrated with how lethal injections were being carried out that they would step in and require states to make changes.
There was indeed plenty of frustration at the oral argument, but much of it came from the Court’s more conservative Justices. They seemed to regard the lethal injection challenges as a “guerilla war” on the death penalty itself: if death penalty opponents can’t convince lawmakers and the public to abolish the death penalty, they can at least try to stop the states from actually carrying out executions. And it was the Court’s conservative wing which prevailed today.
In a decision by Justice Samuel Alito that was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, the Court began with a look backward, at the history of the death penalty in the United States. It emphasizes that, although states may at times have used different methods to execute inmates as part of an effort to find “a more humane way to carry out death sentences,” the Supreme Court has never ruled that any particular method of execution violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Court then declines to do so today, for two reasons.
First, the Court explains, the inmates can win only if they can show that the state has a better option than midazolam – which they have failed to do. Although the inmates had suggested that the state could use two other drugs (which had in the past been used in lethal injections), the state is no longer able to buy those drugs for use in executions.
Second, the inmates have not shown that the use of midazolam in lethal injections is “sure or very likely to result in needless suffering” by the inmate: several lower courts have concluded that the use of midazolam will render an inmate unconscious so that he won’t feel pain from the second and third drugs, and in any event federal judges are not scientists and should stay out of disputes that they lack the expertise to resolve. Moreover, the Court observes, although it is true that there were problems in two executions using midazolam, there have been twelve other executions using midazolam that did appear to go as planned.
Justice Sonia Sotomayor wrote the main dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, and read a summary of her dissent from the bench – a relatively rare step reflecting the extent of her disagreement with the majority. In it, she disputes both the factual and legal foundations for the Court’s ruling today. Among other things, she notes, even if there is evidence suggesting that midazolam will render the inmate unconscious, the problem is that there is also evidence indicating that it cannot keep him unconscious after the other two drugs are administered and result in searing pain. And, she adds, the Court is just wrong when it puts the burden on the inmates to show that there is a better alternative than midazolam, because nothing in its cases imposes such a requirement. The net result of the Court’s opinion, she contends, is to leave the inmates “exposed to what may well be the chemical equivalent of being burned at the stake.”
The Sotomayor dissent may have garnered more support than the one filed today by Justice Breyer, but the Breyer dissent – which Justice Ginsburg also joined – is likely to garner the lion’s share of attention. Like Sotomayor, Breyer read his dissent from the bench; it’s pretty unusual for a second Justice to dissent from the bench, but it demonstrates how sharp the Justices’ differences are on this question and how he feels about the issue. And he takes the remarkable step – reminiscent of the late Justice Harry Blackmun’s 1994 statement that he would “no longer . . . tinker with the machinery of death” – of suggesting that the death penalty itself is unconstitutional.
Breyer’s dissent drew what can only be described as scorn from Justices Scalia and Thomas, both of whom wrote their own concurring opinions (each joined by the other) just to respond to Breyer. Scalia – who eliminated any lingering doubt about the rancor among the Justices on this question by reading from the bench as well – focuses on what he viewed as the legal shortcomings of Breyer’s “gobbledy-gook” argument: not only has the Supreme Court never suggested that the death penalty is “categorically impermissible,” he emphasizes, but the Constitution “explicitly contemplates” the use of the death penalty as a punishment. And Thomas’s opinion seeks to make clear that there is a category of crimes for which the death penalty is not only appropriate but perhaps necessary by reciting the details of one gruesome murder after another.
Today’s decision ends the legal debate over the use of midazolam and clears the way for states to use the sedative in future executions. (Oklahoma and three other states currently use the drug, but that number could increase soon.) It almost certainly does not end the broader public debate over lethal injections and executions, particularly if any of those future executions go awry. But – absent a change of personnel – don’t expect the Supreme Court to re-enter the fray anytime soon.