The case is Glossip v. Gross out of Oklahoma. Readers may recall several botched executions recently, one of which was in the Sooner State. This resulted in other executions being stayed and this case coming before the Supreme Court.
As background, lethal injection involves a three drug cocktail, given intravenously. The first drug is designed to render the prisoner unconscious. The second drug creates a state of paralysis. The third induces cardiac arrest. It is the first of the three drug cocktail that is at issue.
Oklahoma had used thiopental to induce unconsciousness, but the Italian manufacturer quit supplying it for use in executions. The state then turned to a Danish company to acquire pentobarbital for the same purpose, but that manufacturer also refused to supply for executions. Oklahoma then turned to midazolam, which may or may not cause a fully unconscious state. That is the drug at issue in this decision.
Writing for the majority, Justice Alito found that the Petitioners failed to present evidence of a less painful alternative and failed to prove that the new cocktail presented a substantial risk of severe pain during execution. The reasoning from the majority opinion:
Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” … And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. … After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.
Alito notes that anti-death penalty advocates are largely responsible for shutting off the supply of thiopental and pentobarbital. Sotomayor’s dissent counters that the proposition that petitioners should devise a less painful means of their own death as a prerequisite to challenging the existing protocol defies reason.
Justice Breyer, joined by Justice Ginsburg, files the more interesting dissent in which they challenge Alito’s assertion that it is settled that capital punishment is constitutional. The death penalty was reinstated in 1976 in Gregg v. Georgia, with the understanding that it would be fairly and constitutionally implemented. Breyer, with Ginsburg, takes the position that the changes since 1976 have not achieved those goals.
Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.
Unreliability is a reference to the possibility of innocent persons receiving the death penalty or actually being executed. Breyer lists several examples of actual innocents being executed, including two who were posthumously pardoned. One was not in the city where the murder took place at the time of the murder (but with an IQ of only 46 he was unable to properly explain that to defense counsel). In the other, the murder victim, who had gone to Mexico to avoid a shotgun wedding, turned up alive and well after the man convicted of murdering him had already been executed.
Breyer cites data that shows 115 exonerations in cases where there was a sentence of death since 1976, all based on actual innocence, including 6 in 2014 alone. From his dissent, “[R]esearchers estimate that about 4% of those sentenced to death are actually innocent.”
The question of arbitrariness in application is one of the faults the Gregg case hoped to solve when it reinstated the death penalty. Breyer points out that this has not happened. This makes the death penalty capricious and arbitrary, contrary to the constitutional requirement that it not only avoid cruelty, but that it also not be unusual. He quotes Justice White from Furman v. Georgia in 1972:
“[T]he death penalty is exacted with great infrequency even for the most atrocious crimes and . . . there is no meaningful basis for distinguishing the few cases in which it is imposed from the many cases in which it is not”.
My favorite example comes from the two counties in Oregon, separated by a river. In one county the District Attorney regularly sought the death penalty. The other county’s DA opposed the death penalty and would never file capital charges. In other words, whether a murderer was at risk of receiving the death penalty depended on which side of the river the murder occurred on.
Breyer also observes that getting the death penalty and being executed today is about as predictable as being struck by lightning. He goes on to point out that 30 of the 50 states have either outlawed the death penalty (19) or haven’t had an execution in more that 8 years (11).
This decision was 5-4, along the usual lines. Sotomayor and Kagan, while dissenting, did not challenge the constitutionality of capital punishment. That Breyer and Ginsburg did so is remarkable. Perhaps there is a chink in the armor that can be explored further if this, or a future president, should be able replace one pro-death judge with one who has an open mind on capital punishment.
Contributor, aka tidbits. Retired attorney in complex litigation, death penalty defense and constitutional law. Former Nat’l Board Chair: Alzheimer’s Association. Served on multiple political campaigns, including two for U.S. Senator Mark O. Hatfield (R-OR). Contributing author to three legal books and multiple legal publications.