In Lethal-Injection Case, the Supreme Court Essentially Ruled That Death-Row Inmates Have to Pick Their Poison

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A view of the death chamber from the witness room at the Southern Ohio Correctional Facility shows an electric chair and gurney August 29, 2001 in Lucasville, Ohio.
Photo: Mike Simons/Getty Images

Now we know why the Supreme Court left Glossip v. Gross a contentious case about the constitutionality of lethal-injection protocols — for the very last day of its term. Four out of five justices who had something to say in the case announced their opinions from the bench — an extremely rare occurrence that the American public won’t get to hear for itself until audio of the session is released sometime in the fall.

In a 5-to-4 decision, the justices ruled that the death-row inmates in the case failed to establish that Oklahoma’s use of midazolam, a sedative they claimed was ineffective in preventing pain, violated the Eighth Amendment’s prohibition on cruel and unusual punishment. The case’s various opinions and dissents run a whopping 127 pages — far longer than even the Obamacare and marriage-equality decisions. And they’re a sign that states’ methods of punishment are a major point of conflict at the court.

But Justice Samuel Alito, who wrote the lead opinion, went further: He said it is up to the death-row inmates and their lawyers — and not up to Oklahoma — “to identify a known and available alternative method of execution that entails a lesser risk of pain,” which is “a requirement of all Eighth Amendment method-of-execution claims.” In other words, it is the responsibility of those condemned to death to plead and prove the best alternative method to execute them. They have to pick their poison — otherwise, no harm, no foul under the Constitution.

And just so that there aren’t any doubts, even though the case was not about the death penalty proper, Alito went out of his way to remind us that “we have time and again reaffirmed that capital punishment is not per se unconstitutional.”

Glossip has been shrouded in controversy from the start. The case was originally docketed as Warner v. Gross — Charles Warner, whose execution was scheduled for January, had joined forces with three other death-row prisoners to ask the Supreme Court to halt their killings ahead of a formal challenge to Oklahoma’s drug protocol. But the court denied his request — over a forceful dissent by the liberal justices — and Warner was put to death that same night. Among his last words: “My body is on fire.” Inexplicably, the Supreme Court changed course a week later and agreed to hear the pleas of the remaining three petitioners. All this behind-the-scenes wrangling has raised legitimate concerns about how the Supreme Court handles capital cases.

But oral arguments in the case really put the justices’ feelings on display. The hearing itself went far beyond the constitutionality of lethal-injection protocols, turning into a spectacle about the death penalty itself; if one didn’t know any better, one would think capital punishment was facing a trial of nine.

At the time, Alito accused Richard Glossip and his cohorts of a “guerrilla war against the death penalty” — and suddenly, the hearing was no longer about potentially cruel and unusual punishment on a person, but on a state. He complained that the case boiled down to “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 Justice Antonin Scalia, who was on the winning side with Alito here, joined the chorus by blasting the “the abolitionist movement,” whose only concern is to get in the way of the states finding the appropriate drugs.

The two conservatives got the result they wanted in Glossip. And, dismayingly, they convinced Justice Anthony Kennedy to join them in their crusade against the lethal-injection crusaders. This is no small detail: Kennedy is still basking in the glory of last week’s Obergefell ruling, which upheld same-sex couples’ right to “dignity” and recognition from states denying them a right to marry. Grounded in that same notion of dignity, he has been pivotal in other cases touching on the plight of prisoners, including those too young or too mentally ill to even understand the extent of their crimes. Just a few weeks ago, Kennedy invited a constitutional challenge to solitary confinement. He was deafeningly silent in Glossip.  

That left Justice Stephen Breyer, the court’s pragmatist, to lead the charge for a new understanding of the Eighth Amendment. And in an unexpected move early in his dissent, he called for a full legal briefing on the question of “whether the death penalty violates the Constitution.” And armed with charts, graphs, and statistics, Breyer made a compelling case for full-on abolition — premised in the Supreme Court’s own language that the Eighth Amendment ought to be interpreted under “the evolving standards of decency that mark the progress of a maturing society.”

All of this was “gobbledy-gook” to Scalia, who decided to write something solely in response to Breyer, whom he called the “Drum Major in this parade” of “Eighth Amendment abolitionist-inspired jurisprudence.” And Justice Sonia Sotomayor — who had strong words for her conservative colleagues when they first declined to spare one of the Glossip petitioners — wrote at length to express, among other things, how the majority’s decision “leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.”

Such are the fiery dynamics at the Supreme Court, and Glossip is proof positive of how long, arduous, and history-making its October 2014 term has been — the justices are more than ready for a summer break. As for the future of lethal injection and the death penalty more broadly, Breyer’s position leaves open the door for a fresh look at whether there’s room in the Constitution for rethinking how we treat our prisoners. And for dreaming of a future when maybe, just maybe, the United States will fall in line with the rest of the modern world.