Turning to the other big case of the week….

Earlier today, the Supreme Court heard oral arguments in Glossip v. Gross, a challenge to the three-drug lethal injection protocol Oklahoma uses for its executions. The challengers argue that the procedure violates the ban on “cruel and unusual punishments” found in the Eighth Amendment of the U.S. Constitution.

The last time the Supreme Court considered a constitutional challenge to a method of execution was in Baze v. Rees (2008). In a 7-2 vote, the Court upheld the then prevalent lethal injection drug protocol. This protocol is no longer available, however, because it relied on a drug whose manufacturer, responding to pressure from anti-death penalty groups, no longer permits its use for executions. This is why Oklahoma is using a new drug—midazolam—to render the inmate unconscious prior to injecting a second drug to paralyze him and then a third to stop his heart.

“[L]et’s be honest about what’s going on here,” an obviously irritated Justice Alito said at oral argument today.

Executions could be carried out painlessly…. Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are
free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty. But until that occurs, 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? And so the States are reduced to
using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

Justice Scalia soon jumped in:

I guess I would be more inclined to find that it was intolerable
if there was even some doubt about this drug when there was a perfectly safe other drug available. But the States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs. And now you want to come before the Court and say, well, this third drug is not 100 percent sure.
The reason it isn’t 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as—as relevant to the decision that—that 
you’re putting before us?

When Justice Kennedy pressed the attorney challenging Oklahoma’s drug protocol about whether this reason for the state’s adoption of the controversial drug was relevant to the Court’s analysis, the lawyer responded that it was not. The existence or non-existence of alternatives should not be relevant to the Court’s analysis of any given method of execution.

The discussion then turned in a predictable direction: toward what exactly those potential alternatives might be. It was at this point that the firing squads appeared.

Oklahoma and Utah currently have laws that reinstate the firing squad if lethal injection is no longer available. (The Utah law was just passed in March.)

Justice Sotomayor alluded to the possibility of firing squads coming back, which caused Justice Ginsburg to ask whether death by firing squad causes pain. When the lawyer said she did not know, Chief Justice Roberts jumped in:

Do you have a guess? I mean, is there a reason that the States moved progressively to what I understand to be more humane methods of execution? Hanging, firing squad, electric chair, death ­­ you know, gas chamber?… [Y]ou’re not suggesting that those other methods are preferable to the method in this case, are you?

Later in oral argument, when Justice Kagan compared the injection of one of the drugs in the lethal injection protocol to being burned alive—a method of execution that she said everyone agreed would violate the Eighth Amendment—Justice Alito offered a particularly macabre hypothetical: “If an anesthesiologist rendered a person completely unconscious, and then the person was burned alive, would that be cruel and unusual punishment?” After the lawyer said that this might not be unconstitutional, Justice Alito declared her response “incredible.”

This kind of discussion of the constitutional status of methods of execution commonly used in the past is familiar terrain for the Court in these types of challenges.

In 2008, at oral argument in the Baze case, the Justices also considered whether alternatives to lethal injection would still be constitutional. Justice Scalia made clear where he stood on the issue when he felt the challengers were pushing their constitutional argument too far:

Justice Scalia: Where does that come from, that you must find the method of execution that causes the least pain? We have approved electrocution, we have approved death by firing squad. I expect both of those have more possibilities of painful death than the protocol here. Where does this come from that in the execution of a person who has been convicted of killing people we must choose the least painful method possible? Is that somewhere in our Constitution?

Then there was an exchange between Justice Alito and Donald Verrilli (at this point a partner in the law firm Jenner & Block; he would be appointed Solicitor General in 2011). Verrilli was representing Baze, the death row inmate who was challenging Kentucky’s lethal injection drug protocol.

Justice Alito: Isn’t your position that every form of execution that has ever been used in the United States, if it were to be used today, would violate the Eighth Amendment?

Mr. Verrilli: No.

Justice Alito: Well, which form that’s been used at some time in an execution would not violate?

Mr. Verrilli: We would have to suggest it to the test that we are advocating, which it would… whether there is a risk of torturous pain.

Justice Scalia: Hanging certainly would, right?

Mr. Verrilli Jr.: Well, it would have to be subjected to the test.

Justice Scalia: Is that a hard question? Is that a hard question, whether hanging would, whether you had experts who understood the dropweight, you know, that was enough that it would break the neck?

Mr. Verrilli Jr.: If there is a risk of torturous pain and if there are readily available alternatives that could obviate the risk, then any significant risk—

Justice Scalia: Hanging’s no good. What about electrocution?

Mr. Verrilli Jr.: –Well, it would depend. The argument about electrocution, Justice Scalia, is whether or not it is painless, and that was its point when it was enacted, that it would be a painless form of death.

Justice Scalia: It has to be, it has to be painless?

Mr. Verrilli Jr.: It does not, but that was its point, and I think one would have to subject it to the test to see whether it inflicts severe pain that is readily avoidable by an alternative.

Justice Alito: You have no doubt that the three judge protocol that Kentucky is using violates the Eighth Amendment, but you really cannot express a judgment about any of the other methods that has ever been used?

With two states willing to revive death by firing squad if lethal injections are struck down by the courts, the question of whether commonly used past methods of execution would be constitutional today has become much less hypothetical.

In the 2008 Baze decision, Chief Justice Roberts wrote for the majority a fascinating passage that seems particularly relevant in light of the current situation, in which some states might be willing to revive discarded methods of execution if they can no longer use lethal injection.

Throughout our history, whenever a method of execution has been challenged in this Court as cruel and unusual, the Court has rejected the challenge. Our society has nonetheless steadily
moved to more humane methods of carrying out capital punishment. The firing squad, hanging, the electric chair, and the gas chamber have each in turn given way to more humane methods, culminating in today’s consensus on lethal injection. The broad framework of the Eighth Amendment has accommodated this progress toward more humane methods of execution, and our approval of a particular method in the past has not precluded legislatures from taking the steps they deem appropriate, in light of new developments, to ensure humane capital punishment. There is no reason to suppose that today’s decision will be any different.

Roberts describes a dynamic by which the Court has read the Eighth Amendment in such a way as to give state legislatures broad latitude in choosing their methods of execution. And states have done their part to move American society toward more human methods of execution. But the challengers to Oklahoma’s lethal injection drug protocol have an argument that Oklahoma is no longer holding up its end of the bargain. Oklahoma’s procedure is arguably less humane that the three-drug protocol it replaced, which is the one that the Court upheld in Baze. Whether the risk of pain in the new protocol is unconstitutional will be debated; but it seems clear that the risk of pain was lower with the previous method. The reason for this backtracking is not some coarsening of sensibilities in Oklahoma (or the various other states that use this same protocol). It is the difficulty in procuring drugs for the execution because drug manufacturers are refusing to allow their drugs to be used for executions.

It seems unlikely that a majority of the Court will strike down Oklahoma’s drug protocol. There is enough dispute about the risks of pain involved with this method of execution that the Baze holding will probably serve to allow the Court to do what it has always done in these challenges, and reject it. But states are having more and more difficulty in securing drugs for executions. And whether the pressure comes from drug companies or from the Court, there is a possibility that lethal injection will no longer be a feasible option for executions. Might this possibility affect the justices ruling in the current challenge to Oklahoma’s lethal injection protocol? If lethal injections are no longer feasible, and we see a revival of discarded methods of execution, what will the Court do when these methods are challenged as violating the Eighth Amendment?