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Sunday, December 10, 2023 | Back issues
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Supreme Court Upholds Execution Protocol Likened to Burning Alive

WASHINGTON (CN) - The Supreme Court upheld Oklahoma's method of executing prisoners Monday, a practice the dissenting justices called "the chemical equivalent of being burned at the stake."

Richard Glossip led the challenge at hand, claiming that the method of execution creates an unacceptable risk of severe pain in violation of the Eighth Amendment.

Glossip and three of inmates, one of whom has since been executed, argued that midazolam, the first drug employed in Oklahoma's three-drug protocol, fails to render a person insensate to pain.

Oklahoma unveiled the new standards for executions by lethal injection after the horribly botched lethal injection of Clayton Lockett last year.

Several states have resorted to replacement execution drugs because the traditional drugs are in short supply after anti-death penalty activists successfully lobbied the large drug manufacturers to stop making them .

With both a federal judge and the 10th Circuit approving the new standards, the state executed 47-year-old Charles Warner on Jan. 15. Warner had been the fourth inmate in the Glossip challenge.

When the Supreme Court agreed to intervene later that month, it stayed the executions of Glossip, Cole, and Grant.

A five-justice majority of the U.S. Supreme Court upheld the standards as well on Monday based on the failure of the prisoners "to identify a known and available alternative method of execution that entails a lesser risk of pain."

The lead decision by Justice Samuel Alito also faults the prisoners for not showing that there was a clear error in the decision by the federal judge to uphold the protocol.

"Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain," Alito wrote. "After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."

The decision emphasizes that alternative drugs, namely sodium thiopental and pentobarbital, are now unavailable to Oklahoma's Department of Corrections.

"If states cannot return to any of the 'more primitive' methods used in the past and if no drug that meets with the principal dissent's approval is available for use in carrying out a death sentence, the logical conclusion is clear," Alito wrote. "But we have time and again reaffirmed that capital punishment is not per se unconstitutional."

The majority found that testimony from experts on both sides of the case supports the "conclusion that midazolam can render a person insensate to pain."

Glossip failed to sway the court with evidence that midazolam is not recommended or approved for use as the sole anesthetic during painful surgery.


"First, as the District Court found, the 500-milligram dose at issue here 'is many times higher than a normal therapeutic dose of midazolam,'" Alito wrote. "The effect of a small dose of midazolam has minimal probative value about the effect of a 500-milligram dose. Second, the fact that a low dose of midazolam is not the best drug for maintaining unconsciousness during surgery says little about whether a 500-milligram dose of midazolam is constitutionally adequate for purposes of conducting an execution." (Emphasis in original.)

Evidence as to midazolam's "ceiling" failed to strike a chord as well, with Alito saying that the inmates presented only speculative evidence as to "whether midazolam's ceiling effect occurs below the level of a 500-milligram dose and at a point at which the drug does not have the effect of rendering a person insensate to pain caused by the second and third drugs."

Alito concluded by briefly addressing the dissent's "groundless suggestion that our decision is tantamount to allowing prisoners to be 'drawn and quartered, slowly tortured to death, or actually burned at the stake.'"

"That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments," Alito wrote.

Justice Sonia Sotomayor made stake-burning analogy in a principal dissent joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

"The court's determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong," it notes.

Sotomayor's dissent begins by noting that the two drugs midazolam is meant to mask stop the heart "in a torturous manner, causing burning, searing pain."

She ripped into the expert testimony proffered by Oklahoma and elevated the testimony of the inmates' experts as to midazolam's ceiling effect.

"The court not only disregards this record evidence of midazolam's inadequacy, but also fails to fully appreciate the procedural posture in which this case arises," Sotomayor wrote. "Petitioners have not been accorded a full hearing on the merits of their claim."

Glossip and the other inmates have at lease "presented compelling evidence suggesting that midazolam will not work as the state intends" for the preliminary injunction stage, the dissent states.

"The state, by contrast, offered absolutely no contrary evidence worth crediting," Sotomayor added.

She concludes the dissent by discussing whether states should return to the firing-squad methods of execution.

"Certainly, use of the firing squad could be seen as a devolution to a more primitive era," Sotomayor wrote. "That is not to say, of course, that it would therefore be unconstitutional."

Sotomayor conceded that lethal injection represents the latest attempt by states to sanitize how it kills inmates, while "a return to the firing squad - and the blood and physical violence that comes with it - is a step in the opposite direction."

Eighth Amendment concerns aside, Sotomayor noted that a condemned inmate might yet find "such visible yet relatively painless violence ... vastly preferable to an excruciatingly painful death hidden behind a veneer of medication."

"The states may well be reluctant to pull back the curtain for fear of how the rest of us might react to what we see," Sotomayor wrote. "But we deserve to know the price of our collective comfort before we blindly allow a state to make condemned inmates pay it in our names."

Justice Breyer went further in a 41-page dissent, joined by Ginsburg, which calls for the death penalty's abolishment.

"I recognize that in 1972 this court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty," Breyer wrote. "The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked."

Justice Antonin Scalia and Justice Clarence Thomas each attacked Breyer's idea in separate dissents that they each joined.

Scalia's calls the argument a "Groundhog Day" scenario that the court has already decided.

Noting that one of the petitioners has been condemned to die for "raping and murdering an 11-month-old baby," Scalia scoffs that now "they ask us for clemency, as though clemency were ours to give."

Accusing the dissenting justices of clinging to "recent abolitionist studies ... as though they have discovered the lost folios of Shakespeare," Scalia noted that "not once in the history of the American Republic has this court ever suggested the death penalty is categorically impermissible."

Though Breyer pointed to evidence that the death penalty is not an adequate deterrent for would-be murderers, Scalia noted that his colleague "apparently forgets that one of the plaintiffs in this very case was already in prison when he committed the murder that landed him on death row."

"Justice Breyer further asserts that 'whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole,'" Scalia noted.

"My goodness," he continued. "If he thinks the death penalty not much more harsh (and hence not much more retributive), why is he so keen to get rid of it? With all due respect, whether the death penalty and life imprisonment constitute more-or-less equivalent retribution is a question far above the judiciary's pay grade. Perhaps Justice Breyer is more forgiving - or more enlightened - than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough." (Parentheses in original.)

Scalia hammered on that theme, saying Supreme Court justices who go home to expensive, guarded condos cannot relate to the average American.

"The suggestion that the incremental deterrent effect of capital punishment does not seem 'significant' reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others," Scalia wrote. "Let the People decide how much incremental deterrence is appropriate."

Thomas likewise doubted that "anyone would disagree that each of these crimes [committed by the petitioners] was egregious enough to merit the severest condemnation that society has to offer."

"The only constitutional problem with the fact that these criminals were spared that condemnation, while others were not, is that their amnesty came in the form of unfounded claims," Thomas wrote. "Arbitrariness has nothing to do with it. To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means."

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