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
the way it worked on gay rights was a combination of voting by the people, legislative votes, and then the courts started invalidating bans. eventually the us supreme court legalized it nationwide.
death penalty is similar – it has been legislatively banned, it has been effective not used in all but perhaps ten states. the question is whether the courts will strike it down (as they did once before) as a violation of the eighth amendment or it gets legislatively banned.
an interesting point that breyer makes – i think it’s more important that the court invalidates it than it gets undone legislatively. why? because i believe it is unconstitutional and would like the court to declare as such so a future congress cannot reinstate it.
LOL! SCOTUS has turned hard left on most the important issues. But it is a partisan court… 5 – 4 on most of those important issues.
Interesting that Roberts was quoted in response to questions about his creative “the healthcare mandate is a tax” give-away to Obama that he has a responsibility to protect the reputation of the court. This then plays into explaining the decisions of the court as being driven by an ego and legacy centric majority of justices. The left and their main media puppets can and do destroy a reputation in a flash. They might as well be wearing Jackboots to cover the foot poised to be firmly placed upon the neck of any that displease. Unfortunately for the Robert’s court, history will likely not be very kind to its legacy of judicial performance even as five of the nine pass away feeling their egos have been satiated.
“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.”
This leads me to wonder if Justice Scalia, brilliant though he may be, fully understands the words and concepts that he is using or does he simply choose to ignore certain constitutional principles. He asks us to only consider the cases of those who are “sentenced to die for the crimes they committed” but to ignore those who are sentenced to die for the crimes that they did not commit. He would have us ignore those who are wrongfully convicted due to prosecutorial misconduct, honest error in evidence collection or interpretation, lies told by informants to gain better treatment for themselves, inadequate defense through error or lack of resources, erroneous jury instruction, to name a few pitfalls in our judicial system. He also seems to completely sidestep the word “unusual” in the cruel and unusual clause. Whether one approves or not, implementation of the death penalty has become “unusual” in our country by any reasonable definition of that word. Note that the constitution does not specify by what means the penalty has become unusual, only that it is unusual.
“Cruel” is harder to assess because it cannot be quantified as can “unusual”. I would hold that it is cruel to impose a penalty of this finality when there is so much room for error in the determination of guilt. We have seen many examples of individuals factually exonerated of their crimes after many years of imprisonment and despite many appeals. He blithely ignores that the death penalty is irreversible even if the person is subsequently definitively determined to be factually innocent. He seems to feel that this is worth only an “oops”, while I would define it as “cruel”.
But then Justice Scalia is well known for ignoring entire clauses of the Constitution that do not fit his personal political bias while accusing others of doing the same.
From everything even purporting to be factual, it seems that the Court was focussed on a METHOD of carrying out executions, not capital punishment itself. The latter was NOT the matter in front of them. At least two of the justices had expressed their desire to look at the “big” picture, that would get more to the issues you raised. The case presented to the court pre-supposed that the petitioners were duly tried and convicted, and that the death penalty statutes were valid.
Had the court used this case to “try” capital punishment, they would have been far afield… imagine if they went even a further step and forbidden abortions, as those deaths, sanctioned by the State, under the theory of ‘right to choose’, ends the lives of truly factually innocent individuals.
I’m sure that capital punishment, in general, or the standards used to prevent the issues you raise, will have “its day in court”. But not here, not now.
Correct that is what the court case focused on – the sideshow became more interesting in the arguments however.