The Roberts Court conservatives wax genuinely rhapsodic about the constitutional rights of well-funded candidates and political groups. But they are apparently less enamored of the political speech activities of opponents of capital punishment.
When the Supreme Court heard arguments late last month in the latest challenge to lethal injections, two of the conservatives could not contain their distaste for what one called a “guerrilla war” against the death penalty. The death row inmates in the case, Glossip v. Gross, are contending that the drug Oklahoma plans to use to start the three-step procedure will not render them unconscious and will leave them fully aware of agonizing pain as the next two drugs are administered.
Oklahoma and other states have been forced to improvise after European drugmakers stopped providing the barbiturates formerly used to put inmates into a coma-like state at the start of the procedure. The companies acted for their own commercial reasons who needs the bad publicity? but also because of a European Commission directive that effectively prohibits use of the drugs for executions.
In the arguments last month [April 29], Justice Samuel A. Alito Jr. saw the resulting standoff as an effort to undermine democracy in the United States. He noted that death penalty opponents have failed to persuade the court to rule the death penalty unconstitutional and have had only limited success with repeal efforts in state legislatures.
“Until that occurs,” Alito continued, “is it appropriate for the judiciary to countenance what amounts to a guerrilla 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?”
Alito’s critique wrongly conjures up images of massive civil disobedience or direct action by death penalty opponents. Justice Antonin Scalia picked up the theme but with less inflammatory language. The drugs formerly used at the start of lethal injections “have been rendered unavailable,” Scalia said, “by the abolitionist movement putting pressure on the companies that manufacture them.”
A law professor who has studied the events acknowledges that Alito is correct in seeing a concerted effort to make lethal injections more difficult but disagrees with the justice’s language. “It doesn’t strike me as guerrilla warfare,” says James Gibson, an associate dean at the University of Richmond Law School,
“The drug shortage is largely the result of political opposition to the death penalty,” says Gibson, who co-authored an article forthcoming in the Georgetown Law Journal. Most of the opposition is in Europe, Gibson says, but U.S. opponents are participating as well.
Still, Gibson sees Alito’s critique as legally irrelevant. “It surely can’t be the case that a drug shortage that results from political speech is less legitimate than one that results from say a problem in the supply chain,” he says. In the article, Gibson depicts the drugmakers’ actions as a response to what he calls the “international moral marketplace.”
At the Supreme Court, the inmates’ attorney, Robin Konrad, also insisted that the political background was irrelevant to the legal issues. “The purpose of the courts is to decide whether a method of execution or the way that the state is going to carry out an execution is in fact constitutional,” Konrad, an attorney with the federal defender’s office in Arizona, told Alito. The court in 2008 said that an execution procedure would be unconstitutional if it entailed “a substantial risk of serious harm” (Baze v. Rees).
Oklahoma says it has been unable to obtain either of the two drugs previously used to start lethal injections, the barbiturates sodium thiopental and pentobarbital. These are recognized anesthetics capable of putting an inmate (or patient) completely under. Instead, Oklahoma and other states are using midazolam, a sedative pharmacologically akin to Xanax and Valium.
The evidence from some midazolam executions, including Oklahoma’s “botched” execution of Clayton Lockett in April 2014, shows the drug does not produce a painless death as intended in lethal injections. Lockett regained consciousness after administration of the sedative; it took more than 40 minutes for him to die.
The state delayed executions and tweaked its procedures after the Lockett fiasco, but it used midazolam again on Jan. 15 to execute Charles Warner, one of the inmates who originally brought the new challenge. “My body is on fire,” Warner was heard to say before the microphone in the death chamber was turned off.
In the lower court, Judge Stephen Friot rejected as “speculation” the inmates’ argument that the use of midazolam created the risk of severe pain, needless suffering, and lingering death. He leaned heavily on testimony the state offered from a pharmacologist who cited an Internet web site as evidence of midazolam’s supposed coma-like effect.
Lethal injection emerged as the universal method of execution in the United States as part of a 200-year evolution toward more humane methods of putting the condemned to death: hanging and firing squads in the 19th century, the electric chair and gas chamber in the 20th.
No one disputes that burning the condemned at the stake would be cruel and unusual punishment under the Eighth Amendment. But as Justice Elena Kagan pointed out in the oral argument, that is exactly what the inmates say may happen if midazolam is used. They say that risk is intolerable. The Supreme Court has until the end of June to decide.