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The Road to Indecency: the Supreme Court and the Death Penalty

We all of course, would like to think that we are ‘moving down the road toward human decency’ . . .Within the confines of this judicial proceeding, however, we have no way of knowing in which direction that road lies.

William Rehnquist,  Rummel v. 
Estelle, (1980)

As stories keep emerging about errant United States operated drones that wreak havoc on individuals towards whom the drones and their operators bore no animus, it is reassuring to hear the apologies that always follow such events thus demonstrating our humanity.  Another reminder of our humanity is our concern that the death penalty be administered in a way that would be expected of a civilized country.  Proof of this is found in the number of court cases that address the question of whether states are executing the death penalty’s beneficiaries as humanely as possible. The most recent example of this concern comes to us courtesy of the state of Oklahoma in the case of Glossip v. Gross.

Glossip v. Gross was decided by the U.S. Supreme Court on June 29, 2015. In that case, Justice Alito, writing for the majority concluded that the method Oklahoma proposed to use to execute three convicted murderers was not in violation of the Eighth Amendment’s prohibition against the state administering cruel and unusual punishment.

In its original incarnation when it arrived at the Supreme Court, Glossip vs. Gross was known as Warner vs. Gross.  Mr. Warner was one of four prisoners who asked the U.S. Supreme Court to put their executions on hold while the Court considered their claims that the proposed method of execution Oklahoma intended to use violated the constitutional ban on inflicting cruel and unusual punishment.  (Their concern arose from Clayton Lockett’s execution in 2014 in which the Oklahoma executioners used a three-drug protocol similar to, but less potent than the one Oklahoma executioners proposed to use on them. The Lockett execution proved to be an unpleasant experience for Mr. Lockett.  Instead of dying peacefully as he was expected to do, he writhed in apparent pain for 45 minutes before dying of a heart attack.)

Under Supreme Court rules, an execution may be postponed while an appeal is pending, only if five Justices support the request. On January 15, 2015, four Justices voted to stop Mr. Warner’s execution and he was executed a few hours later.  In order for the Court to grant an appeal, however, only four Justices must support the request.  On January 23, 2015 four Justices voted to hear Mr. Warner’s appeal and the case of Warner v. Gross was added to the Court’s docket. Someone at the Court noticed that it was odd for the U.S. Supreme Court to have on its docket a case in which the named petitioner seeking to avoid the death penalty had already been executed.  Accordingly, the name of the case was changed to substitute Mr. Glossip’s name for Mr. Warner’s name so the Court would not look ridiculous.

The United States is one of the world’s top five executioners.  However, it is unique in that it tries to do it humanely. In the case involving Mr. Warner’s successor appellants, Justice Alito, writing for the majority, explained why the appellants were destined to lose their appeal and, therefore, a preliminary injunction would not be granted. He first observed that the lower court was not in error when it found that the Oklahoma’s use of a much larger does of midazolam than had been given Mr. Lockett did not entail a substantial risk of severe pain.  He also observed that the prisoners “failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims.”  In short, the Court would have been more amenable to the request for a preliminary injunction had the prisoners suggested alternate ways they would like to be executed.

Justice Alito also described how executions had progressed over the years from hanging, the firing squad and electrocution to the present, gentler way of disposing of the unwanted. Justice Alito was joined in his opinion by, inter alia, Justice Scalia.  Justice Scalia whose sense of self importance always eggs him on to be heard, wrote a concurring opinion making fun of Justice Breyer’s dissent in which Justice Breyer suggested that the death penalty should be judicially abolished.  As always, Justice Scalia uses colorful language in order to show that he is a man of keen wit as well as an intellect superior to that of most, if not all, of his colleagues.

He cleverly but mysteriously begins his dissent by saying: “Welcome to groundhog day.” He then explains that it is impossible to judicially get rid of the death penalty because repeatedly the Constitution refers to the possibility of someone being executed for criminal conduct and, therefore, executing people in appropriate circumstances is contemplated by the Constitution.  He describes Justice Breyer’s position as “devoid of any meaningful legal argument,” and says “it is full of internal contradictions and (it must be said) gobbledy-gook.”  Those are just a few examples of the vitriol with which Justice Scalia infuses his opinion.  He concludes by saying that by wanting to get rid of the death penalty Justice Breyer “does not just reject the death penalty, he rejects the enlightenment.”  A reasonable person would ask which of the two justices rejects being part of an enlightened community.

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