Bench Memos

Glossip v. Gross: Holding the Line on Lethal Injection

This morning the Supreme Court released its decision in Glossip v. Gross, a case brought by several Oklahoma inmates seeking to prevent their execution by lethal injection. The decision was 5-4, with Justice Alito writing for a majority that included the Court’s conservatives and Justice Kennedy. Justice Scalia wrote a concurring opinion joined by Justice Thomas, who reciprocated with his own opinion joined by Justice Scalia. Justice Breyer wrote a dissent joined by Justice Ginsburg. Justice Sotomayor wrote a separate dissent joined by the liberal justices (other than Justice Kennedy).

The basic facts of the case are straightforward: several death-row prisoners (all of whom had already been convicted of truly heinous crimes) filed a lawsuit seeking to enjoin their executions. They argued that the execution drugs used by the state of Oklahoma – a three-drug combination including midazolam – would cause pain and therefore violated the Eighth Amendment’s prohibition on “cruel and unusual punishments.” Death penalty opponents have worked hard to ban or eliminate the drugs that various states use for executions in recent years, so many states (including Oklahoma) had switched to midazolam, which is still available on the market. Last spring, Oklahoma used the challenged set of drugs to execute admitted murder-rapist Clayton Lockett in an execution that ended up going very, very poorly after the execution team had great difficulty finding a good place to inject the drugs.

Although Oklahoma later modified its protocol, the distasteful details of the Lockett execution provided additional momentum for court scrutiny. After a three-day hearing on the inmates’ request for an injunction, including expert testimony offered by both sides, the federal trial court made a series of factual findings about the relative risks and harms of the challenged drug combination. Before the Supreme Court, the inmates’ arguments focused on the argument that the administered drugs must produce a “coma-like” unconsciousness from sensing pain, with the inmates’ lawyers urging the justices to overturn the district court’s factual findings.

Justice Alito, writing for the Court’s majority, stuck to precedent. Reciting the holding of a fractured opinion from 2008, Justice Alito made clear that it’s not enough for an inmate to claim that there might be some risk of pain. Instead, he says, the cases establish that prisoners have the burden of showing: (1) that Oklahoma’s lethal injection protocol creates a demonstrated risk of severe pain; and (2) that the risk is substantial when compared to the known and available alternatives. Naturally, this latter element requires an inmate to plead the existence of a known and available alternative as an element of his method-of-execution claim under the Eighth Amendment. In addition, Justice Alito noted, the Supreme Court has frequently reaffirmed that capital punishment is not per se unconstitutional.

The other major component of the majority’s opinion is focused on the standard of review applied to factual findings. Typically, in capital punishment cases, as well as in other cases, factual findings of a district court are reviewed under a “clear error” standard. This means that the appeals courts won’t try to second-guess whether the lower court made the right credibility decisions and will only reverse where it’s really, really obvious that the trial court goofed. Here, of course, the trial court had made detailed factual findings about the medical science based on several days of expert testimony from both sides, with both sides’ experts making some informed speculations about the effects of off-label usages of the drugs. Importantly, Justice Alito also rejects the petitioners’ attempt to shift the burden from themselves to the government.

Justice Scalia’s concurring opinion is noteworthy mostly for its rebuttal of the assumptions in Justice Breyer’s dissent: “Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible. The reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates.” Also, on whether a defendant sentenced to life in prison is better off than one sentenced to death: “The capital convict will obtain endless legal assistance from the abolition lobby (and legal favoritism from abolitionist judges), while the lifer languishes unnoticed behind bars.”

Justice Thomas’s concurrence zeroes in on Justice Breyer’s criticism that punishments vary by jurisdiction. This, Justice Thomas argues, is obvious: the Constitution’s venue provisions, which “place such decisions in the hands of jurors and trial courts located where ‘the crime shall have been committed,’ seem deliberately designed to introduce that factor.” He also takes apart several of the academic studies that engage in their own moral judgments about the badness of murders. The whole thing is well worth reading.

Justice Breyer’s dissent claims to argue a process point – that the parties should brief the constitutionality of the death penalty – but his opinion reads like a brief for its unconstitutionality, marshaling only one side of the social science and ignoring other studies and meta-studies (even those cited by the concurring justices).

Justice Sotomayor’s opinion targets the majority opinion, first focusing her fierce fire on the factual findings by the district court. She writes that she would apply “clear error” too, except “without abdicating our duty to examine critically the factual predicates for the District Court’s finding—namely, Dr. Evans’ testimony that midazolam has a ‘ceiling effect’ only ‘at the spinal cord level,’ and that a ‘500 milligram dose of midazolam’ can therefore ‘effectively paralyze the brain.’” Her “critical examination of the factual predicates,” though, seems to look a lot like something other than “clear error.”

Sotomayor’s dissent really heats up towards the end of the opinion. She says that the Court is sanctioning torture: “under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake[.]” This provoked a sharp retort from the majority:

Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.

Despite the Sotomayor dissent’s overheated rhetoric, Glossip is a much less controversial death penalty decision than others in recent memory.  Although there were separate concurrences and dissents, we actually had a clean 5-4 majority consensus. Unlike many of the earlier, more fractured opinions, Glossip will provide important guidance to lower courts in evaluating method-of-execution challenges after many decades of confusion.  

Jonathan KeimJonathan Keim is Counsel for the Judicial Crisis Network. A native of Peoria, Illinois, he is a graduate of Georgetown University Law Center and Princeton University, an experienced litigator, and ...

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