Fault Lines
18 August 2017

Alito’s Payback in the “Guerilla War” Over Executions

July 1, 2015 (Mimesis Law) — This week, the United States Supreme Court released its decision in Glossip v. Gross, where Oklahoma inmates sentenced to die challenged the State’s use of a controversial three-drug lethal injection protocol.

Justice Samuel Alito wrote for the majority.  Chief Justice Roberts and Justices Scalia, Kennedy, and Thomas joined.  (Justices Scalia and Thomas each filed concurring opinions joined by the other.  Justice Breyer wrote a scathing dissent, with support from Justice Ginsburg.  Justice Sotomayor dissented, joined by Ginsburg, Breyer, and Kagan.)

Justice Alito’s majority opinion addresses two main issues.

First, the majority concluded that the District Court did not commit clear error when it found that the inmate petitioners failed to show that using the drug midazolam during executions posed a substantial risk of severe pain.  The lower court’s factual finding was pivotal because of the particular role midazolam plays in the three-drug lethal injection protocol.

The three-drug lethal injection protocol used by states in the past included a barbiturate to anesthetize the inmate, then a paralytic agent such as pancuronium bromide to slow the inmate’s breathing, and potassium chloride to stop the inmate’s heart.  The second and third drugs, quite frankly, hurt.  When considering a 2008 challenge to the lethal injection protocol in Baze v. Rees, Chief Justice Roberts wrote, “It is uncontested that, failing a proper dose of sodium thiopental to render the prisoner unconscious, there is substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride.”

The Oklahoma protocol at issue in Glossip uses midazolam in place of the sodium thiopental.  So, midazolam must do the same thing — render the prisoner unconscious, unable to feel the effects of the next two drugs in the sequence.

The District Court in Glossip was satisfied that midazolam does.

When the Supreme Court reviewed the District Court’s decision, it applied the “clear error” standard.  This standard of review only corrects the lower court’s decision if the decision was “clearly erroneous,” and it precludes correction if the reviewing court might simply have decided the factual question differently.  Justice Alito’s opinion sifts through plenty of rivaling expert testimony offered in Glossip.  But His conclusion that the District Court did not commit clear error says as much about how deferential the standard of review is as it does about the actual anesthetic effects of midazolam.

On the second main issue in Glossip, the majority found that the inmates did not meet a very important burden: pleading and proving that there is a known and available alternative method of execution that is better than the midazolam protocol.

The inmates suggest that sodium thiopental or pentobarbital would be good alternatives to midazolam.  The State of Oklahoma actually agrees.  What a shame that an influential anti-death penalty lobby didn’t think of that before intimidating manufacturers of those drugs to stop making them available to prisons.

Under pressure from opponents of capital punishment, the European Union banned the sale of drugs used in the standard lethal injection protocol to U.S. prisons.  Anti death penalty activists also convinced the EU to add “short and intermediate acting barbiturate anaesthetic agents” like pentobarbital and sodium thiopental to its Regulation on Products used for Capital Punishment and Torture.

The apparent strategy of capital punishment opponents was to take away the means of lethal injection, in order to force prisons to stop executing inmates. Instead, Oklahoma and other states began experimenting with alternative drug cocktails, including combinations using midazolam.

This strategy is like banning the sale of rope to U.S. prisons, instead of repealing statutes that allow execution by hanging. The strategy works pretty well until the prisons start looking around for a rubber hose or leather strap to make the noose out of.

At oral arguments for Glossip, Justice Samuel Alito posed what I considered at the time to be the decisive question.

Now, this Court has held that the death penalty is constitutional.  It’s controversial as a constitutional matter.  It certainly is controversial as a policy matter.  Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty.  Some of those efforts have been successful.  They’re free to ask this Court to overrule the death penalty.

But until that occurs, 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?  And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is  eliminated.

In Justice Alito’s majority opinion in Glossip, Alito answered his own question.  By insisting that the inmates bore the burden of providing an alternative to midazolam, the Court forced onto anti-death penalty abolitionists the consequences of guerrilla war. In war, there are casualties.  In war, there is collateral damage.  In war, there are strategies that backfire.

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