Monday, June 29, 2015
by Michael Meltsner, guest contributor*
Today’s Supreme Court’s 5-4 ruling in the lethal injection case from Oklahoma (Glossip v Gross) is much more than another rejection of last minute efforts by condemned inmates to avoid execution. On the surface, the Court’s holding is straightforward enough-- a majority of the Justices believed the anti-anxiety drug midazolam would sufficiently render a prisoner unconscious so he would not suffer unbearable pain when administered the remaining drugs in the three drug cocktail employed to conduct the execution.
But the opinions of the five Justices who wrote (Justice Alito for the Court majority, Justices Scalia and Thomas concurring and Justices Breyer and Sotomayor dissenting) explicated and hardened tense disagreements (and also an unusual personal dimension of animosity) that were first exposed to the public during the oral argument of the case in April.
Most significantly, two more Justices, Breyer and Ginsburg, joined the parade of Justices and former-Justices who regard the death penalty as inconsistent with the Constitution’s Eighth Amendment prohibition against cruel and unusual punishment. Justice Breyer’s opinion in this regard is the sort of tour de force critique of current practice that will be sure to affect the views of judges and justices in the future.
Breyer’s views about the unreliability, arbitrariness and crime deterring ineffectiveness of capital punishment were met by a level of hostility from Justice Scalia that carries even his opinion writing record of sarcasm and vitriol to new heights.
Breyer wrote “gobbledy-gook,” he “contorts” the constitutional text, his arguments are “devoid” of logic and so on. So much anger leaks from Scalia’s opinion that one is tempted to surmise that given the last decade’s exonerations, frequency statistics and behaviorial changes leaning against the death penalty (all described by Breyer) Scalia sees the ultimate end of a death penalty and is furious.
But this is a sideshow, if an important one. Today’s decision reaffirms that five justices still support the constitutionality of capital punishment and given that, they are unwilling to interfere with the state’s experimenting with a still unproved method of execution. Two executions, one in Oklahoma and one in Arizona that employed the drug were botched. Florida claims it has used midazolam safely.
From a doctrinal perspective, Justice Alito’s opinion has controversial aspects. The Court defers in part on a trial court’s findings at a preliminary hearing that, based on a medical witnesses’ testimony, a higher dosage of the drug will work effectively even though the finding is contested by others. Should problems with the drug arise in the future, the Court can rule that the condemned in this case simply did not produce sufficient evidence of risk. Additionally, the Court announced that challenging a method of execution requires proof that a less painful method exists and is available. This will strike many constitutional lawyers as odd. It only seems to make sense if the Constitution’s ban on cruel and unusual punishments is ultimately conditioned by a requirement that there be a death penalty. Justice Sotomayor calls a version of the Court’s argument here a “flawed Syllogism”: Some method of execution must be available, holds the Court, so the condemned must come forward with an acceptable and available method to prevail. But the Constitution rejects a cruel and unusual method of death, regardless of the crime committed or other methods conceivable.
This last dispute underscores what is really going on here, under cover of the lethal drug controversy. Five Justices at this time wish to retain capital punishment; four do not.
*Michael Meltsner is Matthews Distinguished Professor of Law at Northeastern Law School. In awarding him an honorary doctor of law in 2012, John Jay College named him the “principal architect” of the legal abolition movement for his work with the NAACP Legal Defense Fund.