The Supreme Court this year has taken a surprising though small turn to the left on a number of issues, but it remained on the right in its 5-4 decision that rules that the sedative midazolam – which death-row inmates had argued does not reliably cause unconsciousness – is not a form of cruel and unusual punishment. The decision allows executions in Oklahoma, and elsewhere in the country that rely on this drug, to resume.
The 5-4 decision broke along typical lines with Justice Anthony Kennedy this time joining the four conservative members to allow its use. Justice Alito, writing for majority, writes, “The prisoners failed to identify a known and alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims.” Moreover, the “prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”
As Andrew Brasher in the SCOTUSblog points out, “The prisoners’ claims about midazolam are part of a coordinated effort to kill capital punishment by a thousand cuts.”
However, more interesting than the tactical use of the effectiveness of the execution drugs to attempt to further whittle away at the death penalty is the dissenting exchange between Justices Breyer and Ginsburg, who came quite close to announcing their readiness to rule the death penalty unconstitutional and who engaged in an interesting exchange with Justices Scalia and Thomas about the reliability and effectiveness of the punishment, a dispute that the New York Times argues “overshadowed the core issue in the case.”
The death penalty faces an interestingly similar trajectory to bans on same-sex marriage. Increasingly, states are limiting, outlawing and delaying executions. This spring, Nebraska’s legislature voted 30-19 to override the veto of Governor Pete Ricketts and abolish the death penalty. Nebraska became the 19th state to repeal the death penalty, and the 7th state to do so since 2007. It became the first predominantly Republican state to abolish the death penalty in over 40 years.
In May, conservative columnist George Will wrote, “Without a definitive judicial ruling or other galvanizing event, a perennial American argument is ending. Capital punishment is withering away.”
In 2012, California narrowly defeated a ballot measure that would end the death penalty in California, even as executions have been ground to a halt since executing Clarence Ray Allen in January 2006.
Justice Breyer, in his dissent, joined with the minority opinion about the unconstitutionality of the lethal injection drug, but added, “For the reasons stated in Justice [Sonia] Sotomayor’s opinion, I dissent from the Court’s holding. But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
Justice Breyer writes, “This Court has specified that the finality of death creates a ‘qualitative difference’ between the death penalty and other punishments (including life in prison) … There is increasing evidence, however, that the death penalty as now applied lacks that requisite reliability.”
He continues, “Researchers have calculated that courts (or State Governors) are 130 times more likely to exonerate a defendant where a death sentence is at issue. They are nine times more likely to exonerate where a capital murder, rather than a noncapital murder, is at issue … This pressure creates a greater likelihood of convicting the wrong person.”
“The problems of reliability and unfairness almost inevitably lead to a third independent constitutional problem: excessively long periods of time that individuals typically spend on death row, alive but under sentence of death,” he argues. “The dehumanizing effect of solitary confinement is aggravated by uncertainty as to whether a death sentence will in fact be carried out … Furthermore, given the negative effects of confinement and uncertainty, it is not surprising that many inmates volunteer to be executed, abandoning further appeals.”
Justice Antonin Scalia joined the opinion of the Court, as written by Justice Samuel Alito, but wrote his own response to address Justice Breyer’s call for abolishing the death penalty all together.
Justice Scalia begins, “Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby), come before this Court asking us to nullify their sentences as ‘cruel and unusual’ under the Eighth Amendment … They were duly convicted and sentenced. They were granted the right to appeal and to seek postconviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give.”
He continues, “The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.”
“Even accepting Justice Breyer’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook,” he writes.
Justice Breyer also addresses the issue of whether the Courts or Congress should determine the legality of the death penalty. He argues that because Congress has failed to implement the death penalty in a constitutional manner, the Court must act.
He writes, “I recognize a strong counterargument that favors constitutionality. We are a court. Why should we not leave the matter up to the people acting democratically through legislatures? … 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. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility.”
Justice Scalia responds, “Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”
While the Supreme Court ruled in favor of the execution drug, it seems that George Will is correct about the overall trajectory of the death penalty – it is withering away.
—David M. Greenwald reporting