No, Justices Alito and Scalia, death penalty politics aren't the issue

Supreme Court questions on strategy of anti-death penalty movement miss the constitutional point

Oral arguments before the Supreme Court earlier this week over Oklahoma’s lethal-injection protocol took an unusually harsh tone (which Dahlia Lithwick parses nicely here at Slate). What was more jarring, though, was the theme of statements – er, questions - by some of the judges about the backdrop to the execution challenge.

The case involves one of the drugs Oklahoma uses to execute its condemned prisoners, and how that fits in with court-sanctioned protocols. Briefly, in 2008, the court ruled in Baze v. Rees that Kentucky’s three-drug protocol (first developed in Oklahoma) was constitutional because the first drug in the procedure, the barbiturate sodium thiopental, rendered the prisoner insensate to the agonizing pain caused by the second drug, pancuronium bromide, which paralyzes, and the third drug, potassium chloride, which stops the heart. Without being deeply anesthetized, the person being executed would feel an intense burning sensation, experts have said. The court ruled that the three-drug protocol starting with sodium thiopental sufficiently knocked out the inmate and so did not pose “a substantial risk of serious harm” or an “objectively intolerable risk of harm.”

Since then, international opposition to the death penalty, particularly among European Union countries, has led pharmaceutical companies to stop selling sodium thiopental for use in executions. States also used pentobarbital, which had a similar effect on the inmate, for the first drug, but that is now hard to procure for similar reasons. So states have been scrambling to find other ways to kill people. Ohio, Arizona and Oklahoma, among others, replaced that first drug with midazolam, a sedative doctors use to treat patients' anxiety before administering general anesthesia, or for minor outpatient procedures.

But according to experts for the challengers to Oklahoma’s lethal-injection protocol, the drug is insufficient to render the condemned insensate – and it has a ceiling effect, which means that after a certain amount of the drug is used, additional amounts are ineffective. Although midazolam was used without obvious incident in a dozen executions, it was part of three botched executions last year, including one in Oklahoma. That led to the current appeal by several Oklahoma death row inmates that using midazolam violates the standard set by the Baze ruling.

The oral arguments on Wednesday descended into a rolling skirmish among the court’s conservative and liberal justices, with Justice Elena Kagan coming across as particularly harsh. But more worrisome was Justice Samuel Alito, who suggested that the strategy of the anti-death penalty movement should be weighed in determining the constitutionality of the protocol:

"JUSTICE ALITO: Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions, there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other states could carry out executions painlessly.

"Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. 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? And so the states are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

"Now, what is your response to that?"
Justice Antonin Scalia then piled on:
"JUSTICE SCALIA: And I guess - I guess I would be more inclined to find that it was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available. But the states have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the states cannot obtain those two other drugs.

"And now you want to come before the court and say, well, this third drug is not 100% sure. The reason it isn't 100% sure is because the abolitionists have rendered it impossible to get the 100% sure drugs, and you think we should not view that as -- as relevant to the decision that -- that you're putting before us?"

Actually, it is irrelevant. Either the use of midazolam creates “a substantial risk of serious harm” or an “objectively intolerable risk of harm,” or it doesn’t, which is the constitutional question. The lack of sources, and the reason, for the states’ preferred drugs has no bearing on the constitutionality of the chosen alternative.

It’s hard to say where the court will fall on this issue. It rejected by a 5-4 vote a stay request by Charles Frederick Warner, one of the original appellants in this case, and he was put to death in January. A few days later, the court agreed to hear this full appeal, which only takes the support of four justices – likely the four who voted for the stay.

Whether those four votes can pick up a fifth is the big question. And even if they do and rule that the midazolam protocol is unconstitutional, the underlying battle over the death penalty itself continues.

Follow Scott Martelle on Twitter @smartelle.

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