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April 29, 2015

Intriguing reports on Supreme Court oral argument about Oklahoma's lethal injection protocol

Lyle Denniston at SCOTUSblog has this report on the oral argument today in the Supreme Court case concerning Oklahoma's lethal injection protocols.  It starts this way:

For months, the Supreme Court has given no explanation as it refused to give inmates awaiting execution any chance to learn about the methods by which they would be put to death, and has said nothing as it allowed states to experiment with new lethal-drug combinations even after some of those executions were seriously botched. It allowed one inmate to be put to death even before it decided whether to hear his case. In other words, the regime of capital punishment went forward without any new constitutional assessment of it by the Justices; they have not done so on lethal-drug executions for seven years.

On Wednesday, the nation may have gotten the beginnings of an explanation. What appears to be a clear majority of the Court has grown frustrated with the repeated constitutional assaults on the death penalty, especially since that penalty is still constitutionally permitted. That frustration almost boiled over as the Court heard the case of Glossip v. Gross.

That case, at its core, is only about whether the first drug Oklahoma uses in its three-drug lethal combination is capable of making the inmate sufficiently unconscious that he feels little or no pain as the next two, highly toxic drugs paralyze and then kill him. The grim possibility of that particular protocol was described alarmingly by Justice Elena Kagan as “burning alive, from the inside.”

And Wednesday’s argument started out as if it would proceed through a detailed examination of the properties of that first drug — midazalom — and how two lower courts had analyzed its effect in the execution chamber. There was much discussion about judicial fact-finding and what was open to the Supreme Court to second-guess about that.

But the tone and the substance of the argument changed abruptly, when Justice Samuel A. Alito, Jr., moved aggressively into an exchange with the Oklahoma death-row inmates’ lawyer, Robin C. Konrad. “Let’s be honest about what’s going on here,” Alito began. He mentioned how controversial the death penalty is, and said its opponents would be free to continue to try to get it abolished. But, he said, until that happens, “is it appropriate for the judiciary to countenance what amounts to a guerilla 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?”

This Reuters article about today's arguments, headlined "Lethal injection case exposes U.S. top court's death penalty divide," develops similar themes in its review of the arguments. It starts this way:

Tensions on the Supreme Court over America's use of the death penalty boiled over on Wednesday as the justices appeared badly split in a case challenging Oklahoma's lethal injection method as a breach of the Constitution's ban on cruel and unusual punishment.

The nine-member court's five conservatives seemed likely to side with Oklahoma in the case brought by three death row inmates, while its four liberals expressed doubt about the propriety of using the drug at the center of the dispute. Conservative Justice Anthony Kennedy, who often casts deciding votes in close cases, said nothing to suggest he would side with the liberals.

The full oral argument transcript is available at this link.

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In Baze v. Rees, Alito concurred separately to note that if we allow executions, we have to allow procedures to ensure they can be performed regularly. He noted:

Properly understood, [the plurality's standard] will not, as Justice Thomas predicts, lead to litigation that enables “those seeking to abolish the death penalty … to embroil the States in never-ending litigation concerning the adequacy of their execution procedures.”

Note the qualifier. He later warned that misapplication would "create a grave danger of extended delay" We are left though with a question of fact -- if the procedures aren't really adequate, blaming defense attorneys for some "guerrilla war" is blaming the messenger.

Posted by: Joe | Apr 29, 2015 4:24:27 PM

Blaming the messenger indeed. It's the government's FDA and it is the FDA that never approved these drugs for execution. And companies not wanting to supply drugs for execution is simply the free market at work.

Posted by: George | Apr 29, 2015 7:38:56 PM

"Properly understood" is something that definitely does not describe any of the courts interpretation of Baze.

Posted by: DaveP | Apr 29, 2015 8:11:17 PM

If none of the courts were correct, it's a bit confusing, since they went for and against the defendants depending on the case.

Posted by: Joe | Apr 29, 2015 8:27:25 PM

"Guerrilla" does sound a lot sexier than "abolitionist." Thanks Sam!

Posted by: Guerrilla | Apr 29, 2015 8:55:50 PM

Imagine that: Alito and Scalia berating lawyers trying to save the lives of their clients.

Posted by: anon1 | Apr 30, 2015 9:23:22 AM

I think the complaint has a point that, if the death penalty is Constitutional, the Courts need to recognize a Constitutional method to carry it out. That being said, the suggestion that challengers must provide an alternative method is misplaced for this reason:

The death penalty doesn't require the least painful method, it requires a Constitutionally acceptable method. If the state comes up with a method that pasts a test and the inmate comes up with an even better method*, it's almost certain courts would deny the inmates request to use the second method. That shows courts evaluate the method itself in a vacuum. That means the reverse is true. Even if we can't, at this time, come up with a better method, a Constitutionally impermissible method is still not allowed.

* As an example, suppose the inmate could show that a firing squad causes less pain and kills more quickly and cheaply than lethal injection, but the state doesn't want to do it because the optics are bad, the courts aren't going to force them to use that method. If the Constitution instead required the best method no matter what, I could see placing the burden on the challenger to show a better method (with the understanding that the rule would apply no matter what as long as they came up with a better method).

Posted by: Erik M | Apr 30, 2015 12:13:15 PM

The oral argument was interesting.

Sotomayor basically called the state liars. The case did significantly rest on facts. Unfortunately for the defendants, only four seemed to worry much about them.

She also made the "optics" point -- she suggested the reason states don't use firing squads or nitrogen gas is because they look bad. I think that's largely true; there is also probably a certain distaste in how the state has to be involved directly in via the firing squad. Meanwhile, there is a reason why the few states that retain it are out West, including one or more with a sizable Mormon population.

But, this is telling -- they do have other methods. And, the particular claim here isn't totally bogus. The usage is probably not of the sort the states actually want to use; they felt they had to because of shortages. The defendants might benefit, but they don't have some obligation to have the state use unconstitutional (if they are) drugs. It's akin to if state budgetary matters because of politics results in making it very hard to pay defense attorneys. This doesn't mean the right to counsel can be unconstitutionally diminished even if the budgetary problems were a result of liberals playing chicken.

Key point -- it is not the "best" or "least painless." There is just some constitutional minimum.

Posted by: Joe | May 2, 2015 11:42:33 AM

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