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Justices debate lethal injection and the death penalty: In Plain English

First, there was hanging.  Then there was the electric chair, or in some places the gas chamber and the firing squad.  More recently, many states and the federal government have relied on lethal injection – administering a fatal dose of drugs – to carry out executions.  The switch to lethal injections came in no small part because they were regarded as more humane, for both the condemned inmate and the witnesses to the execution:  the prisoner could simply drift off, as if he were sleeping.

In 2008, the Supreme Court rejected an argument that Kentucky’s lethal injection procedures violated the Eighth Amendment, which prohibits “cruel and unusual punishment,” because of the possibility that the inmate could suffer serious pain if the procedures were not followed properly.  But that didn’t end the debate, particularly after several well-publicized botched executions.   And so yesterday the Court heard oral arguments in a new challenge, this time to Oklahoma’s lethal injection procedures.  After over an hour of often-heated debate, the Court’s more conservative Justices seemed like they could be poised to rule once again in favor of the state, in the hope of ending what they regard as a “guerrilla war” against the death penalty itself.  Let’s talk about yesterday’s hearing in Glossip v. Gross in Plain English.

First, some background may be useful.  Most lethal injection procedures (known as a “protocol”) use a series of three drugs.  The first drug is intended to make the inmate unconscious, so that he does not feel any pain.  The second drug paralyzes him, stopping his breathing; the third and final drug, potassium chloride, stops his heart.  States had generally used a drug called sodium thiopental as the first step in the process, but it is no longer sold for use in executions; for the same reason, the next drug to which states turned – pentobarbital – is either unavailable or extremely difficult to find.  That scarcity led Oklahoma to rely on a third drug, known as midazolam.  But midazolam is a sedative used to treat anxiety, not an anesthetic, and that difference is at the heart of the current challenge before the Court:  the plaintiffs in the case, a group of death row inmates awaiting execution in Oklahoma, argue that it cannot reliably make the inmate unconscious before he receives the second and third drugs.

Arguing on behalf of the inmates yesterday, attorney Robin Konrad tried to convince the Justices that the trial court had made a mistake when it concluded that the state’s use of midazolam was not a problem.  The first part of the argument focused on whether that conclusion was something that the Supreme Court should even review, much less overturn, and how the drug had worked (or not) in other executions.

But then the Court’s more conservative Justices turned to a much broader issue that had clearly been troubling them, and which may have been the reason that the Court opted to hear the case in the first place:  whether the real motive behind the repeated challenges to lethal injection procedures, in the Supreme Court and lower courts, were effectively an effort to end the death penalty altogether by making it impossible for states to carry out executions.

Justice Samuel Alito led the charge, following up on a comment by Konrad regarding the effectiveness of sodium thiopental, the drug originally used in executions.  He asked, perhaps somewhat rhetorically, why Oklahoma was no longer using sodium thiopental.  And then he said, “Let’s be honest about what’s really going on here.  . . .   Oklahoma and other States could carry out executions painlessly.”  The Supreme Court, he continued, “has held that the death penalty is constitutional.”  That’s controversial, he said, and opponents of the death penalty “are free to try to persuade legislatures to abolish death penalty. . . .  But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty”?  It was because of the earlier lethal injection challenges, he suggested, that the states were no longer able to obtain the more reliable drugs.

Justice Scalia then took the baton, telling Konrad that “the States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs.”  He complained to Konrad that “now you want to come before the Court and say, well, this third drug is not 100 percent sure.  The reason it isn’t 100 percent sure 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?”

Justice Kennedy chimed in as well, telling Konrad that the question that she needed to answer was what weight, if any, the Court should give to “the fact that there is a method [to execute prisoners painlessly], but that it’s not available because of . . . opposition to the death penalty?”  And a few minutes later, Chief Justice John Roberts joined the fray, lamenting to Konrad that although her “client is guilty of a capital offense” and “is eligible for the death penalty,” “you put us in a position with your argument that he can’t be executed, even though he satisfies all those requirements.”

If Konrad had had a hard time with the Court’s more conservative Justices, the Court’s more liberal Justices were equally tough on Oklahoma Solicitor General Patrick Wyrick, bombarding him with questions about whether midazolam would knock the inmate out, so that he wouldn’t feel the pain from the two drugs that would actually kill him.  Justice Elena Kagan, for example, pushed back hard against Wyrick’s reliance on the trial court’s findings.  She suggested that the facts on which the court’s conclusion rested were either “gobbledygook” or “irrelevant,” and she reminded Wyrick (and the rest of the courtroom) what could happen if the execution did not go properly:  when the potassium chloride is administered to stop the inmate’s heart, “it gives the feeling of being burned alive.”

Justice Stephen Breyer also tried to poke holes in the state’s version of the facts.  He pointed out that the inmates’ expert had testified that midazolam is good at helping someone fall asleep, but that person will be “jolted into consciousness” when the next two drugs are administered.  By contrast, he told Wyrick, the conclusions of the state’s expert didn’t strike him as very sound.  The expert had indicated that “if you take a lot [of midazolam], you’ll be dead, but before you’re dead, you’re in a coma.”  But “lots of things,” Breyer contended, “kill you without putting you into a coma, such as the next two drugs” in the protocol.

Justice Sonia Sotomayor was openly skeptical, if not downright dismissive, of Wyrick’s efforts to explain – in response to a question from Justice Ruth Bader Ginsburg – why surgeons only use midazolam to put a patient to sleep initially, but not to keep him unconscious.  She told him that she was “substantially disturbed” by statements that the state made in its brief that were not only “not supported” by the sources on which it relied, but “in fact directly contradicted” by them.

Even if the inmates can count on four votes from the Court’s more liberal Justices (and it certainly seemed like they can), they still need at least one more vote to win.  And that vote is hard to find:  there were virtually no questions for Wyrick from any of the conservative Justices.  That doesn’t mean that they are certain to vote for him, but from the state’s perspective it is clearly a good sign.  (Justice Clarence Thomas did not ask any questions, but we would expect him to vote for the state as well.)  And so although the inmates might have hoped that the Court’s decision to hear the case meant that several Justices had concerns about how the states were carrying out lethal injections, yesterday’s argument shows that the Justices’ concerns may have been directed elsewhere – at what some perceive as a campaign to make it impossible for states ever to execute anyone.  Given the level of frustration that we saw among the conservative Justices yesterday, the result could be an opinion that allows Oklahoma and the three other states currently using midazolam to go forward with executions using the drug; such a decision could lead other states to follow suit.  More broadly, the Court’s opinion could also make it harder for inmates to challenge lethal injection procedures in the future.  We’ll know by the end of June, and when we do we will be back to cover it in Plain English.

Recommended Citation: Amy Howe, Justices debate lethal injection and the death penalty: In Plain English, SCOTUSblog (Apr. 30, 2015, 7:16 PM),