May 08, 2015 Practice Points

Death-Penalty Case Highlights Supreme Court's Ideological Divide

There was an unusually contentious argument on the final day of the Court’s term.

By Yaser Ali – May 8, 2015

On April 29, 2015, the U.S. Supreme Court heard argument in Glossip v. Gross, a high-profile case involving the constitutionality of Oklahoma’s lethal-injection protocol. The technical issue before the Court was whether the drug midazolam, administered as the first drug in a three-drug cocktail, sufficiently anesthetizes a prisoner from experiencing excruciating pain caused by the next two drugs, vecuronium bromide and potassium chloride. Citing the botched execution of Oklahoma prisoner Clayton Lockett exactly one year earlier, Petitioners alleged that because midazolam does not produce a deep-coma-like unconsciousness, its use violates the Eighth Amendment’s ban against cruel and unusual punishment.

The unusually contentious argument on the final day of the Court’s term highlighted the justices’ deep ideological divide on the issue of capital punishment and how the state may lawfully kill. The Court’s conservative justices repeatedly expressed their frustration about why midazolam is being administered instead of more reliable drugs. The “abolitionist movement” is carrying out a “guerrilla war against the death penalty” and preventing the states from obtaining drugs that “could be used to carry out capital punishment with little, if any, pain,” Justice Alito proclaimed. Justice Scalia directed similar frustrations at the petitioners’ attorney, Robin Konrad, exclaiming, “The abolitionists have rendered it impossible to get the 100 percent sure drugs.” Justice Kennedy then chimed in, asking, “What bearing, if any, should we put on the fact that there is a method, but that it’s not available because of—because of opposition to the death penalty?”

The liberal justices meanwhile focused their critique on the impact of the drug itself and criticized Oklahoma’s solicitor general, Patrick Wyrick, for relying on questionable expert reports. Justice Kagan likened Oklahoma’s drug protocol to “burning somebody alive” and questioned whether it would be constitutionally permissible to burn someone at the stake after they had been administeredan anesthetic with questionable effectiveness. Justices Sotomayor and Breyer also challenged the state’s scientific findings and aggressively criticized Wyrick for relying on unsubstantiated claims and an expert report based largely on printouts from an Internet website.

Justice Breyer was the only justice to address the broader question of whether the death penalty itself might be unconstitutional, stating, “[I]f there is no method of executing a person that does not cause unacceptable pain, that—in addition to other things—might show that the death penalty is not consistent with the Eighth Amendment.” Konrad quickly clarified that although she might agree with that characterization, her argument was focused only on the narrower question of the constitutionality of Oklahoma’s use of midazolam in its lethal-injection protocol.

The Court’s decision is expected in mid-June 2015.

Yaser Ali, Osborn Maledon, P.A., Phoenix, AZ

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