The Supreme Court’s Ruling On The Lethal Injection Case Will Disappoint Death Penalty Abolitionists

To say the death penalty is controversial is to say a building engulfed in flames has a small heat problem — as if to demonstrate, even the Supreme Court debate got a little vitriolic during the opening arguments for Glossip v. Gross, a case regarding the constitutionality of a drug used in a lethal injection cocktail.

Specifically, the case is hearing arguments over whether the drug in question, midazolam, properly induces unconsciousness in an prisoner before they are killed. The question was raised after a series of botched executions using the drug, one of which was called “a bloody mess.” The question the Supreme Court must answer is whether the drug is reliable enough to use in a lethal injection cocktail, and if not, whether that might violate the Eighth Amendment ban on cruel and unusual punishment.

Lethal injection is already legal, but this particular drug has only recently been added to the cocktail. The states using lethal injection used to use sodium thiopental, but this drug has become increasingly difficult for states to find. Some companies have stopped making it, which others have been put under pressure by anti-death penalty activists. Because the drug is so hard to come by, midazolam has been used as a replacement — to varying effectiveness.

The plaintiffs argue that the drug is not effective or reliable, while the state of Oklahoma says that it is both effective and humane. But during the oral arguments last Wednesday, things got a little heated.

Justice Elena Kagan pointed out that there was not enough certainty that the drug worked as it needed to, and that if a prisoner was not properly rendered unconscious, they could end up in agony. She then scathingly criticized the fact that executions were still proceeding with this drug, despite the uncertainty.

“We’ve actually talked about being burned at the stake, and everybody agrees that that’s cruel and unusual punishment. So suppose that we said, ‘We’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects. Maybe you won’t feel it, maybe you will. We just can’t tell.’ And you think that that would be okay.”

Justice Samuel Alito, on the other hand, blamed death penalty abolitionists for what he called a “guerrilla war” against the death penalty which resulted in the drug being so hard to find.

“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 guerrilla 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?”

What said abolitionists are hopeful this case will do is result in making lethal injection illegal — or, in a broader ruling, making the death penalty illegal. But as wonderful as that would be, it is incredibly unlikely.

To start, the case before the Supreme Court is extremely specific. It is considering the constitutionality of the use of a single drug that is used in just one method of execution. SCOTUS’ opinion could be equally narrow; if the use of this drug is outlawed, it’s only a matter of finding an alternative, and lethal injections could continue. Dale Baich, an attorney for the plaintiffs, explained that there were already alternative drugs available, so even if the court were to outlaw this particular drug, another would take its place.

“The case is a very narrow case. We’re simply asking the US Supreme Court to rule that states cannot use midazolam as part of the lethal injection protocol. If we’re successful in the Supreme Court, it doesn’t mean that lethal injections cannot go forward. Oklahoma can purchase pentobarbitol. Since a stay was issued in our case, Texas and Missouri and Georgia have all carried out executions using pentobarbitol.”

It’s even less likely that their opinion would include an outright ban of the death penalty entirely. For that reason, even if lethal injection were to be outlawed, we already have states that are bringing back firing squads, the electric chair and gas chambers. This is the uphill battle anti-death penalty activists face: when Americans want to kill someone, nothing short of a total ban will stop them.

SCOTUS also keeps track of popular opinion, and while it’s unknown how heavily they weight that information in their opinions, there wouldn’t be much help there. Even the most recent polls find that a majority of Americans still support the death penalty.

Nothing in the written basics of the case touches on the arguments over morality, crime prevention, the potential deaths of innocents or the immense costs that the death penalty is responsible for. At least so far, the case is about the cold hard facts of pain and death.

As painful as it is to be this pessimistic, the resulting opinion from this case may not have the outcome activists are hoping for. Given falling support for the death penalty over the years, SCOTUS may eventually hear a case that could result in the abolishing of the death penalty for good, but the fight will have to continue for that day to come.

[Photo by Alex Wong/Getty Images]