The Armchair Jurist

The Supreme Court of the United States finished its 2015 term by handing down three decisions on Monday. The most controversial of those decisions related to a challenge to the method of capital punishment used in Oklahoma.

Oklahoma’s lethal injection regime involves a three-drug cocktail used, in order, to render the prisoner unconscious, paralyze the prisoner and then stop the prisoner’s heart.  The crux of the matter before the Supreme Court related to the use of a drug called Midazolam as the first drug in the cocktail.  It was argued that the use of this drug violated the US Constitution because it could not reliably render the prisoner unconscious which meant administering it amounted to cruel and unusual punishment.

Justice Samuel Alito gave the judgment for the majority (joined by four other Justices) and found:

1. The Supreme Court has never ruled that any particular method of execution violates the Constitution’s prohibition on cruel and unusual punishment.
2. It declined to do so in this case because:
   1. The prisoners can only win if they can show that the state has a better option than Midazolam which they could not.
   2. The prisoners failed to show that the use of Midazolam in lethal injection is “sure or very likely to result in needless suffering” by the prisoner.
3. The use, therefore, of Midazolam in lethal injection survived the prisoners’ constitutional challenge and thus lethal injection in Oklahoma also survives.

Justice Sotomayor wrote the principal dissent (with which three Justices agreed) and in it she disputes not only the legal basis of the majority decision but the factual one.  The final result of the Court’s decision, in the view of the dissenters, is to leave prisoners “exposed to what may well be the chemical equivalent of being burned at the stake.”

Of course, there was a subtext to this case and the arguments about the method of execution.  That subtext was a much simpler question: is the use of the death penalty constitutional?

This is a vexed question that has plagued the US Supreme Court for decades.  Nothing about the question has been resolved in this case other than a confirmation that a wide schism exists between the Justices.

Justice Breyer dissented (and had Justice Ginsburg agree with him) and openly suggested that the death penalty is itself unconstitutional.  Breyer, indeed, invites a case in which this question can be squarely be put before the Court.

In reply, Justices Scalia and Thomas write separate concurrences that are, frankly, amazing reading:

• Justice Scalia describes the writing of Justice Breyer as “gobbled-gook” and calls the judgment “Groundhog Day”.
• Justice Thomas recites a litany of gruesome factual circumstances from cases that have been before the Court which support, in his view, the notion that the death penalty is not only permitted but required. It makes for squeamish reading.

Ultimately, despite the strident arguments about the death penalty, the outcome of this case is that nothing has changed in the methodology by which Oklahoma administers the death penalty and the appeal of the prisoners was dismissed.