Argument analysis: Impatience with death-penalty resistance
on Apr 29, 2015 at 3:14 pm
For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.
On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.
That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”
And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.
But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad.
“Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
He went on: “And so the states are reduced to using drugs like this one [midazalom] which give rise to disputes about whether, in fact, every possibility of pain is eliminated.”
After Konrad replied that it was the duty of the courts to decide whether a method of execution was constitutional, Justice Antonin Scalia took up Alito’s point. The states, Scalia said, have tried other drugs, and those have been made unavailable “by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs.” The reason midazalom may not be “100 percent” certain to mask pain, he added, “is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as relevant to the decision that you’re putting before us?”
The inmates’ lawyers tried to respond that it was irrelevant, because the Court was obliged to examine the constitutionality of a particular protocol a state chose to use. When the argument seemed to move on, Justice Anthony M. Kennedy insisted, with evident impatience, that Konrad had not answered the question of whether the resistance to the death penalty was a factor that the Court should consider in weighing the validity of a given protocol.
Although Kennedy’s approach was less emotional, it seemed clear that he, too, was frustrated with the resistance movement and what it required the Justices to do to examine each state’s approach to executions.
Before long, Chief Justice John G. Roberts, Jr., joined in this line of questioning, pressing Konrad to come up with suggestions of alternatives that would enable the states to proceed with capital punishment. “The case comes to us,” Roberts said, “in a posture where it’s recognized that your client is guilty of a capital offense, it’s recognized that your client is eligible for the death penalty, that that has been duly imposed. And yet you put us in a position with your argument that he can’t be executed, even though he satisfies all of those requirements. And you have no suggested alternative that is more humane.”
Konrad was being battered by the Justices’ underlying discontent with the way the fight against capital punishment has moved from outright attempts at abolition to a seeming campaign to put it out of reach, one execution method at a time.
If Justice Clarence Thomas, who as usual said nothing during the hearing, shared the views of four of his colleagues that the states were being hampered improperly from going ahead with executions, that could make a majority to reject the challenge that the Oklahoma inmates have mounted. What form a final decision might take was not clear, but it seemed quite obvious that several of the Justices, and perhaps a clear majority, would be looking for a way to deter the abolition-by-litigation movement.
The four more liberal members of the Court — who probably were the ones who cast the four necessary votes to hear the challenge to Oklahoma’s execution protocol — used Wednesday’s hearing to probe in close detail how that protocol works, and what its justifications were. They pummeled the Oklahoma solicitor general, Patrick R. Wyrick, with hard questions about the effects of midazalom, and even questioned the sincerity of the claims that the state had made in its brief in the case.
That reach into the chemical and medical details of Oklahoma’s procedure perhaps served to illustrate just what the apparent majority of the Court did not want to be the ongoing task of the judiciary in overseeing the states’ discretion about how to conduct executions.