Response by Dean Phyllis Goldfarb
Geo. Wash. L. Rev. Docket (Oct. Term 2014)
Glossip v. Gross, 575 U.S. ___ (2015).
Docket No. 14-7955; April 29, 2015; June 29, 2015
Slip Opinion | New York Times | SCOTUSblog
With so many 5-4 rulings on fundamental issues of our time, the U.S. Supreme Court is no stranger to rancor. But in Glossip v. Gross,1 a case challenging state lethal injection procedures, the rancor reached extravagant levels.
The rancor began before the Supreme Court agreed to review the Tenth Circuit case, known then as Warner v. Gross. Warner, Glossip, and two other petitioners were the next in line to be executed under Oklahoma’s new lethal injection protocol that, as in a few other states, had led to horrific spectacles like Clayton Lockett’s execution. After receiving the lethal drug cocktail, Lockett lifted his head, spoke, moaned, writhed, and ultimately died of a heart attack 43 minutes later, 10 minutes after his execution had been halted. (Had Lockett not died, presumably he would have been revived by medical staff so that he could be successfully executed later. Such are the paradoxes of a capital punishment system).
Warner did not live to see his case heard, because the Supreme Court refused to grant him a stay of execution.2 Four justices dissented from denial of the stay, the four dissenters in Glossip. Because it takes four justices to grant certiorari, and five to grant a stay, a courtesy of past Supreme Court practice had been for a fifth justice to join the stay until a vote could be taken on whether to review the case.
But with courtesy in short supply in this matter, Supreme Court protocol bowed to lethal injection protocol, and Warner met his death. Subsequently, the Supreme Court agreed to hear his case, now denominated Glossip v. Gross, and stayed the executions of the next three scheduled for Oklahoma’s death chamber. Neither Alito’s majority opinion, nor either of the concurrences, make mention of this rancorous prelude, though Sotomayor includes its bare facts in her dissent’s rendition of the procedural history of the case.3
Vitriol continued at oral argument in Glossip, and was on display at the end of the term as four justices took the unusual step of reading their opinions from the bench. And what opinions they were. Sotomayor’s and Breyer’s dissents gaze respectively and intently at Eighth Amendment issues specific to lethal injection and beyond; Alito’s opinion alters the Eighth Amendment standard for analyzing execution methods while taking jabs at “anti-death-penalty advocates”4 and Sotomayor’s dissent; and Scalia and Thomas write concurrences targeting the position expressed by Justice Breyer, ridiculed as ushering in “Groundhog Day” by repeating “abolitionist” refrains and “waving over [his] head a ream of the most recent abolitionist studies (a superabundant genre) . . . .”5
The Glossip Court was addressing lethal injection seven years after Baze v. Rees6 upheld against an Eighth Amendment challenge the three-drug lethal injection protocol used in Kentucky and most other death penalty states. The risk of a painful and lingering death claimed in Baze to be cruel and unusual punishment under the Eighth Amendment came from improper administration of lethal drugs by medically untrained executioners.7 (Doctors are prohibited from participating in executions as a matter of professional ethics). But the court was examining the protocol again in 2015 because circumstances had changed.
Now the drugs themselves posed a substantial risk of severe pain, raising Eighth Amendment concerns. Sodium thiopental, a coma-inducing barbiturate, the first of the three drugs that the Baze plurality had deemed constitutional under the Eighth Amendment standard, was no longer available. Consequently, states had experimented with other drugs—notably, midazolam, an anti-anxiety medication—and a number of executions had gone terribly awry, with prisoners remaining conscious, gasping and snorting, for extended periods before finally expiring.
At a district court hearing on their motion for a preliminary injunction to halt executions that used midazolam as the first drug in the protocol, petitioners presented two medical experts who testified that midazolam could induce a coma but could not reliably maintain it. The noxious stimuli of the remaining two paralytic and heart-stopping drugs might cause agonizing pain because they could rouse the sedated prisoner to consciousness. The state’s expert testified to the contrary, though he cited little scientific research, and the state’s attorneys later distanced themselves from some of their expert’s idiosyncratic assertions. Nonetheless, the district court’s findings relied on the state’s expert, and the motion for a preliminary injunction was denied, a ruling the Tenth Circuit upheld in Warner v. Gross.8
In Baze, Justice Roberts had said “it is uncontested that, failing a proper dose of sodium thiopental that would render the prisoner unconscious, there is a substantial, constitutionally unacceptable risk” of pain, violative of the Eighth Amendment.9 Standing alone, this sentence would seem to suggest that the Oklahoma protocol could not withstand Eighth Amendment scrutiny. But in another part of his opinion, when he addressed the Baze petitioners’ claim that the three-drug protocol could be replaced with a lethal dose of a single barbiturate, Justice Roberts wrote that the risk of severe pain from injection of the three-drug cocktail was not “substantial when compared to the known and available alternatives.”10
For the majority in Glossip, the latter sentence rescued the former. Even if midazolam could not sustain a coma, threatening a painful execution, petitioners could not offer a known and available alternative, since the approved alternative drugs could no longer be obtained. To summarize: the Baze plurality stated that the state’s failure to use an alternative—a single, more easily administered barbiturate—did not violate the Eighth Amendment. Then the Glossip majority contorts this statement into its holding: unless the petitioners provided the state an alternative to the drugs that risked excruciating pain, the state’s drug protocol would not violate the Eighth Amendment. Somehow finding painless execution methods had become a job for the condemned.
Through Glossip’s gloss on the Eighth Amendment—peculiar for those who profess fidelity to the plain meaning of the constitutional text—the explicit constitutional right to be protected from barbarous state punishment was transformed into a conditional right. Unless the condemned could identify a less barbarous alternative for the state to use, the Eighth Amendment prohibition could be disregarded. Defying the spirit of the Nuremberg Code’s ban on human experimentation, Glossip holds that the Eighth Amendment can’t prevent states from using medically untrained personnel to administer untested drugs that have already led to ghastly execution scenes.
Quoting Baze, Alito’s opinion in Glossip states the premise that “because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’”11 In her dissent, Justice Sotomayor rejects the seeming logic of this premise. Regardless of penological views about the theoretical appropriateness of death as punishment, if all available execution methods are barbarous, Justice Sotomayor observes, then the execution constitutes cruel and unusual punishment. If the available execution drugs create the “chemical equivalent of burning alive,”12 as alleged by petitioners, then even if no alternative is available, the Eighth Amendment prohibits that execution method, as much as it prohibits drawing and quartering or burning at the stake. Compelling though this constitutional logic sounds, Alito—without seeming to notice the irony—labels it “outlandish rhetoric.”13
Underlying the majority’s sometimes derisive and sometimes ad hominem attacks on the opinions of the dissenters is the competing imagery constructed by the majority and the minority. Sotomayor’s opinion tells a tale of torture. She emphasizes that non-medical corrections personnel administering experimental drug protocols on death sentenced people risks torturous executions.
The majority’s narrative, however, is not of torture but of conspiracy. Death penalty abolitionists conspired to make drugs for pain-free executions unavailable, the majority alleges, and then had the audacity to complain that the available drugs cause pain. In this conspiracy story, the abolition movement has infected both empirical research—Thomas criticizes references to “empirical studies performed by death penalty abolitionists”14—and the law itself—creating what Scalia designates “abolitionist-inspired jurisprudence.”15 So vehemently do the majority and concurring justices rail against abolitionists—Scalia: “The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from abolitionist judges)”16—that their tirades sometimes resonate like those of nineteenth century, Southern politicians condemning the anti-slavery forces to whom the abolitionist label was also applied.
At oral argument Justice Alito opined that lethal injections had been made riskier by prohibitions on the import of barbiturates obtained by those fighting “a guerilla war against the death penalty.” Not to be outsmarted by such a self-righteous breed—to whom they now add Justice Breyer, whose Glossip dissent questions whether the death penalty can ever conform with Eighth Amendment strictures—the majority holds petitioners responsible for the unavailability of better execution drugs.
Who is responsible for their unavailability? The “guerilla warriors” in the lethal injection story are largely European: European manufacturers who refuse to sell their pharmaceuticals for use in American executions, a human rights NGO based in London that assists them in doing so, and pharmaceutical corporations whose commercial interests dictate that they disassociate products designed for improving health from those for inflicting death. This is not America’s anti-death penalty litigation movement of the 1960s and 1970s, not the “Groundhog Day” that Justice Scalia’s concurrence decries, but another set of lawfully engaged global players. The majority’s image of organized resistance to constitutional activity by sometimes disingenuous means is more aptly applied to America’s anti-abortion movement than its anti-death penalty movement, though the majority is far less likely to apply it in the former context.
Perhaps even more than other momentous 5-4 cases, the Glossip opinion gives us a holding forged in impassioned and intemperate partisanship. The reason that previously used barbiturates are no longer available for lethal injections may be galling to some of the justices, but it is not legally relevant to Glossip’s Eighth Amendment claims. Nor are the majority and concurring justices’ graphic descriptions of the monstrous crimes for which petitioners were condemned legally relevant to questions about the state’s lethal injection protocol, except perhaps to reinforce a world view in which lack of constitutional concern for the cruelty of state punishment is morally appropriate. As Justice Alito says in Glossip, not everybody dies a painless death, as if that observation justifies—under the Eighth Amendment or any other compass—a government policy that tortures as it executes.
A majority of Americans may have long supported the idea of the death penalty in the abstract, but the cases involving execution methods highlight the intractable problems—legal, moral, political—with the reality of the death penalty. If the gruesome details involved in taking human life as punishment show us the cruelty of death sentences, then it is not irrational to conceive of death as a punishment that may be incapable of implementation by constitutional means. Indeed the inability to find constitutional means may reveal the folly of our presumption that states could take human life and honor constitutional norms simultaneously.
And perhaps we were also wrong to presume that Supreme Court justices as a group could manage emotions effectively while addressing death penalty questions deliberatively. Not all the opinions in Glossip display rationality, care, and civility. Some of them reek with animosity. An adverse impact on the quality of the Court’s functioning is yet more collateral damage from our capital punishment system. That weighty institutional cost should be added to the list of harms that the death penalty wreaks.
1. Glossip v. Gross, No. 14-7955, slip op. (U.S. June 29, 2015).
2. Warner v. Gross, No. 14A761, slip op. (U.S. Jan. 15, 2015).
3. Glossip, slip op. at 3-4 (Sotomayor, J., dissenting).
4. Glossip, slip op. at 4 (majority opinion).
5. Glossip, slip op. at 1 (Scalia, J., concurring).
6. Baze v. Rees, 553 U.S. 35 (2008).
7. Baze, 553 U.S. at 54.
8. Warner v. Gross, 776 F.3d 721 (10th Cir. 2015).
9. Baze, 553 U.S. at 53.
10 Id. at 61.
11. Glossip, slip op. at 4 (majority opinion).
12. Glossip, slip op. at 2 (Sotomayor, J., dissenting).
13. Glossip, slip op. at 29 (majority opinion).
14. Glossip, slip op. at 3 (Thomas, J., concurring).
15. Glossip, slip op. at 6 (Scalia, J., concurring).
16. Id. at 3.
Recommended Citation
Phyllis Goldfarb, Response, Glossip v. Gross, Geo. Wash. L. Rev. Docket (July 3, 2015), http://www.gwlr.org/glossip-v-gross/.
