Seven years ago, the Justices upheld lethal injection as a constitutional means of execution. A few weeks ago, they heard arguments in another lethal injection case. This one was precipitated by a number of botched procedures that resulted in extremely painful deaths.
Lethal-Injection Procedures (Glossip v. Gross)
In its 2008 decision in Baze v. Rees, the Supreme Court rejected a challenge to death sentences carried out by injection with lethal drugs. The challenge was based upon the possibility that the procedures could cause serious pain if they were not properly followed.
By a vote of 7-2, the Justices held that such a possibility did not render execution by lethal injection unconstitutional. A mere possibility did not mean that such executions were "cruel and unusual" within the meaning of the 8th Amendment (or the 14th Amendment, as applied to the states). That decision is the "governing" precedent for this latest case.
But it's not so clear what that "governing" precedent actually established that's precedential. The lopsided vote in Baze is misleading. Despite being 7-2, it did not produce a majority rule or rationale. There were 7 separate opinions written, and collectively they asserted at least 3 different ways to analyze these death penalty cases.
The leading opinion, authored by Chief Justice Roberts, was joined only by Justices Kennedy and Alito. In that plurality opinion, Roberts surveyed past "cruel and unusual" decisions and concluded that a method of execution is unconstitutional if it entails an "intolerable risk" of "severe pain." Applying that test, he determined that the lethal injection procedure in that case was acceptable.
In an opinion by Justice Thomas, he and Justice Scalia made clear their view that only the most torturous, barbaric, and gratuitously excruciating punishments were "cruel and unusual." So only executions by burning alive, disemboweling, crucifixion, drawing and quartering, and the like would violate the constitution. Lethal injection was clearly acceptable to these two Justices.
In dissent, Justice Ginsburg, joined by Justice Souter, argued that the test for "cruel and unusual" was whether the procedure created an "avoidable risk"of "unnecessary pain." They refused to approve lethal injection unless or until it was shown that the risk could not be avoided.
(Justices Stevens and Breyer each wrote a separate opinion. Stevens kind of agreed with Roberts. Breyer agreed with Ginsburg's test, but believed that lethal injection passed.)
So that's where the law, such as it is, stands.
Now in the current case, the question is about the use by Oklahoma (and some other states) of a particular 1st drug in a 3 drug protocol. The 2nd and 3rd drugs in the sequence stop the person's breathing and stop his heart. But it's the 1st drug administered that is supposed to anesthetize the person so that he is unconscious and feels no pain.
Because of a shortage of the commonly used 1st drug (in large measure because of the efforts of death penalty opponents), states like Oklahoma began to use an alternative. That drug is actually a sedative, not an anesthetic. In large enough doses, however, the so-called midazolam is supposed to be effective in inducing an unconscious state.
Nevertheless, in several executions, in a few different states, in which midazolam was used, the person was not rendered unconscious and, instead, suffered a gruesome and extremely painful death. Is that enough for the Court to rule that lethal injection with midazolam is unconstitutional?
Putting that question another way: is the apparent unreliability of the sedative midazolam--to induce unconsciousness and, thereby, to prevent an intensely painful execution--enough to persuade at least 5 Justices that lethal injection with that drug violates the constitutional prohibition against "cruel and unusual" punishment?
Let's consider the Justices and their possible votes.
First, there are the easiest ones. Scalia and Thomas, as we've already noted, believe that only punishments similar to disembowelment, burning alive, crucifixion, and drawing and quartering are prohibited by the Constitution. There's very little chance they will consider the unreliable or botched lethal injections sufficiently gruesome.
On the other hand, there are the liberals--Ginsburg, Breyer, Sotomayor, and Kagan. Some of them are openly hostile to the death penalty. All of them seemed extremely skeptical at oral argument, if not utterly contemptuous of Oklahoma's defense of its lethal injection protocol. It's very likely that all 4 of these Justices will vote that what Oklahoma is doing is unconstitutional.
That leaves Roberts, Kennedy, and Alito. They joined together to form the plurality in the 2008 Baze case. It was they who stated that the test for "cruel and unusual" is whether there is an "intolerable risk" of "severe pain."
So is the risk with midazolam "intolerable?" Less subjective and amorphous than that, how great is the actual risk ? And how great must that risk be for Roberts or Kennedy or Alito to conclude that lethal injection with midazolam flunks their constitutional test?
At oral argument, Alito seemed quite unsympathetic to the claims against Oklahoma's use of that alternate drug. He seemed to blame the death penalty opponents for making the more reliable drugs so scarce. But would he really think that's a legitimate reason to uphold the use of the risky drug? Of a drug that risks seriously painful executions? It would be no surprise if he voted to approve Oklahoma's protocol.
As for Roberts and Kennedy, they expressed similar concerns to Alito's. But--at least from several reports of the oral arguments--neither seemed to be as openly hostile to death penalty opponents generally, or to be directing that hostility toward the opponents of the midazolam protocol as much as Alito.
Moreover, Kennedy has not been a staunch supporter of the death penalty. Indeed, he has occasionally joined the liberals to invalidate it in certain circumstances. The unreliability of using midazolam as an anesthetic might just nudge Kennedy over to the liberals in this case.
Roberts has also shown some ambivalence about the death penalty in the past. Not as much as Kennedy. But he is certainly nowhere near the camp of Scalia and Thomas.
So the bottom line on this one?
As with the same-sex marriage and Obamacare subsidies cases, the 4 liberals are virtually certain to vote on the same side and, in this case, to vote against Oklahoma's lethal injection protocol. And as in those other cases, they need just one more vote for a majority.
One thing's for sure: they will not get Scalia or Thomas.
And they will very likely not get Alito.
The most likely 5th vote for the liberals, if they're going to get one, is--no surprise here--Kennedy. He seemed to acknowledge at oral argument that the use of midazolam created much more risk than other drugs. Whether he will hold the shortage of more reliable anesthetics against the opponents of midazolam is, of course, anyone's guess. But Kennedy has never seemed as petty and belligerent as some others on the Court.
Roberts wouldn't be a shock if he applied his Baze standard and found midazolam to be too risky. Again, he is certainly no Scalia or Thomas. But, if I were the liberal Justices, I wouldn't count on him.
So the vote on this one, as on the cases we previously discussed, will likely be deeply split.
If I had to bet, I'd say 5-4--but I have no confidence whatsoever which way that will be.
(Ok, if I'm ordered from on high to say? Kennedy goes with the Libs.)
In the next post: the confederate flag on a license plate?