Yesterday’s 5-4 decision by the Supreme Court in Glossip v. Gross was, in one way, the affirmation of a longstanding pattern in the court. As both the majority and concurrences point out, the court has never struck down a state’s chosen procedure for carrying out the death penalty. Hanging, electrocution, lethal gas, the firing squad, and lethal injection itself have all withstood constitutional scrutiny. The court had previously upheld a three-drug protocol for lethal injection seven years ago in Baze v. Rees. Here, both the district court and court of appeals had upheld Oklahoma’s use of a different three-drug protocol involving the use of midazolam, a sedative used with the other drugs to induce a state of unconsciousness. The majority opinion, authored by Justice Alito, pointed out that the petitioners had to show the likelihood that they would prevail on the merits, and that the lower courts had not committed “clear error” on the facts. The petitioners failed to carry their burden to show that Oklahoma’s amended protocol poses an “objectively intolerable risk” of severe pain, the majority concluded, and the lower courts’ decisions were affirmed. Simple. So why did the opinion run to 127 printed pages, with two concurrences and two dissents that each were significantly longer than the majority’s ruling? Why were there frequent text and footnote attacks on colleagues’ flawed logic or analysis, often hostile and vitriolic? This is a deeply polarized court on the application of the death penalty itself, and in Glossip, the justices bared their claws for that fight.
This decision brings human rights home in two significant ways. First, the case itself arises from a highly effective international boycott on the manufacture and sale of one of the drugs approved by the court in Baze, a drug that had become the primary sedative in the three-drug protocol used by most states in carrying out lethal injections. As Justice Alito says in his opinion, “activists” and “anti-death-penalty advocates” pushed companies in Europe to stop sale of the drug in question to U.S. prisons for use in executions. While the Alito opinion suggests that this was a civil society movement alone, it in fact was backed by the European Union governments themselves, whose 28 member countries have strongly opposed the use of the death penalty in the United States. Rather than simply expressing their views in the media or in the courts, these governments acted to support what has been called a “moral marketplace,” putting pressure on European companies not to sell execution-related drugs in the U.S. The use of substitute drugs in the lethal injection protocol had led to a number of botched executions across the country, far more than only the state killing of Clayton Lockett in Oklahoma, a shocking example briefly alluded to in the majority opinion and described in graphic detail in Justice Sotomayor’s dissent, joined by Justices Breyer, Ginsburg and Kagan. How effective the execution drug boycott will continue to be after Glossip remains to be seen.
A second, and perhaps more significant development, was the separate dissent by Justice Breyer, joined by Justice Ginsburg. Breyer’s opinion raises the core question of whether the death penalty itself violates the constitution. It documents a sordid history of executions of innocent people, scores of exonerations of death row inmates over the years, arbitrariness in the death penalty’s imposition, the lack of adequate funding for defense counsel, and protracted delays in execution, now averaging around 18 years. Justice Breyer’s careful documentation and data on those issues provoked strong attacks from both Justices Scalia and Thomas, each of whom wrote a special concurrence solely to assault the Breyer position. Justice Scalia, always ready with barbs and unbecoming sarcasm when in the minority, calls the Breyer opinion “a white paper devoid of any meaningful legal argument,” an argument “full of internal contradictions and (it must be said) gobbledy-gook.” He concludes his opinion with this sentence: “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.” Harsh words for a cordial colleague. Yet neither he nor the ever-silent Justice Thomas addresses Breyer’s core arguments on exonerations, the right to counsel, or racial disparities in the imposition of the death penalty.
Justice Breyer invokes comparative and international law arguments in his attack on capital punishment. Noting that death row inmates stay in solitary confinement over long periods of time on death row, Breyer refers to theUN’s Special Rapporteur on Torture, who has called for a ban on solitary confinement over 15 days. He rehearses an argument often successfully made in other courts around the world: the agonizing years of uncertainty while awaiting execution, exemplified in the decision by the European Court of Human Rights in Soering v. United Kingdom. There, the court refused to extradite a murder suspect to the United States because of the risk of the prolonged wait on death row, which the court found would be cruel, inhuman or degrading. Breyer invokes that case and similar decisions from Canada, Jamaica, Zimbabwe, and South Africa. He notes that he relies “primarily on domestic, not foreign events” in arguing that the death penalty is “unusual,” anticipating Scalia’s rant about the non-existence of a “world community,” yet notes that in 2013, only 22 countries of the 193 countries in the world carried out an execution, and only eight, including the United States, executed more than 10 individuals. The Inter-American system for human rights protection has never directly addressed the question of methods of execution as a human rights violation, but a decision on admissibility in Medina v. United States, suggests that they will find the use of the electric chair to constitute such a violation. The death penalty is inexorably fading away in practice around the globe, and Justice Breyer is yet another of many Supreme Court members who are its prophets of doom.
I cannot, in good conscience, end this post without a brief allusion to the bizarre requirement, added in the court’s majority opinion, that, in order to prevail on their claim of unconstitutionality, the petitioners themselves must offer a “known and available alternative” method of execution that is not intolerably painful. As Justice Sotomayor aptly notes in her dissent, “some condemned inmates may read the Court’s surreal requirement that they identify the means of their death as an invitation to propose methods of execution less consistent with modern sensibilities.” Et tu, death row inmates?