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

Oral arguments before the Supreme Court earlier this week over Oklahoma's lethal-injection protocol took an unusually harsh tone. 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 1 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 3-drug protocol (first developed in Oklahoma) was constitutional because the 1st drug in the procedure, the barbiturate sodium thiopental, rendered the prisoner insensate to the agonizing pain caused by the 2nd drug, pancuronium bromide, which paralyzes, and the 3rd 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 3-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 1st 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 1st 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 2 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 2 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 4 who voted for the stay.

Whether those 4 votes can pick up a 5th 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.

Source: Los Angeles Times, Editorial, May 3, 2015

A Horrifying Day at Court

Death brings out the worst in the justices.

In theory, what the 9 justices of the U.S. Supreme Court were all but shouting about Wednesday was midazolam hydrochloride, a sedative used by Oklahoma and other states as part of their lethal injection protocol. The very technical question before the court is whether midazolam reliably causes a deep, comalike unconsciousness in the prisoner, or whether it does not, allowing him to feel the excruciating effects of the other drugs used subsequently to end his life. The constitutional claim is that a failure to sedate the prisoner sufficiently would violate the Eighth Amendment's ban on cruel and unusual punishment. A series of botched executions in Oklahoma, Ohio, and other places in recent months has drawn public attention to the fact that we may - as Justice Sonia Sotomayor colorfully put it this week - create "a substantial risk of burning a person alive who's paralyzed, correct?"

It looked at first like it would be a debate about the trial court's medical fact-finding, a discussion that would be more Gray's Anatomy than Black's Law Dictionary, but the arguments quickly blew up into a proxy war about ideology and politics and the ugly rift between the justices on how we feel about killing people in America. Oral arguments are usually spirited and enthusiastic. But they are rarely unpleasant and embarrassing. By the end of the hour of arguments in Glossip v. Gross, Chief Justice John Roberts had to step in and scold his colleagues for both their rancor and their rudeness to the oral advocates appearing before them. It was a cringe-worthy last day of arguments of the term, but in some ways perhaps a fitting one.

There have been a lot of reports in recent years about the deep ideological fractures at the Supreme Court. The justices are as divided as they have ever been on issues ranging from race and religion to reproductive health, guns, and campaign finance reform. They like to tell us - to use Justice Stephen Breyer's preferred locution - that they are more than merely "9 junior varsity politicians." But Wednesday's performance certainly suggested that they were closer to 9 junior varsity high schoolers, with nasty tempers and bitter resentments.

There is a bit of history here. In 2008, in Baze v. Rees, the Supreme Court upheld the use of a 3-drug cocktail used by most states to administer the death penalty. The supply of sodium thiopental, the barbiturate sedative states used to use, has since dried up because of boycotts from foreign suppliers and companies opposed to capital punishment. Oklahoma changed its lethal injection protocol last year to replace sodium thiopental with midazolam. Shortly thereafter, that state badly botched the execution of Clayton Lockett with an apparently insufficient dose of midazolam. He writhed and bucked on the gurney for 43 minutes, as he suffered an apparently agonizing death.

Death row inmates Richard Glossip, Charles Warner, and other Oklahoma prisoners then filed an Eighth Amendment challenge to the use of midazolam in the protocol. They lost in the federal courts, which permitted the use of midazolam, so the prisoners sought a stay of execution at the Supreme Court, which was denied on Jan. 15. Justices Sotomayor, Breyer, Ruth Bader Ginsburg, and Elena Kagan filed a rare and angry dissent from the court's refusal to hear the case. That same evening, Oklahoma used midazolam in the execution of Charles Warner. His last words were reportedly: "My body is on fire." The court agreed to hear the inmates' case a week later - minus the deceased Warner.

Just to be clear who's on which teams in the Glossip argument, Kagan establishes with his lawyer, Robin Konrad, that the central issue in the case is that "there is this huge range of uncertainty about what happens when someone is given this drug." Then Justice Samuel Alito comes out gunning for Konrad about the tactics of death penalty opponents: "Why is Oklahoma not using sodium thiopental?" he asks. Konrad starts to respond. "You don't know?" interrupts Alito. "Let's be honest about what's going on here." Explaining that capital punishment is highly controversial, he asks, "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?"

In other words, Alito wants Konrad to explain why her client isn't somehow reasonably on the hook for the scarcity of really good execution drugs. As Justice Antonin Scalia frames it: All the really effective drugs have been rendered unavailable "by the abolitionists putting pressure on the companies that manufacture them so that the states cannot obtain those other drugs." Justice Anthony Kennedy soon interrupts to demand an answer to this question, pointing out that Konrad has been interrupted several times and still hasn't given an answer to the question about the "abolitionists" who are really to blame for the fact that we can't kill people more efficiently in America. Breyer has to step in to remind Konrad, "It's not you. You didn't purposely hide these other kinds of drugs."

And Roberts wonders idly (and quite creepily) whether Konrad has an opinion on the constitutionality of a new Oklahoma law that would asphyxiate prisoners with nitrogen gas.

It goes downhill from here. When Oklahoma's solicitor general, Patrick Wyrick, attempts to explain why the state protocol is constitutional, Kagan calls the reasoning of the district court judge on at least 1 issue "gobbledygook." When Wyrick begins to read from the record, Sotomayor stops him, saying outright: "I have a real problem with whatever you're reading because I'm going to have to go back to that article." She adds: "I am substantially disturbed that in your brief you made factual statements that were not supported by the cited sources and, in fact, directly contradicted" them and warns "so nothing you say or read to me am I going to believe until I see it with my own eyes." She lays out three areas where, in her view, the state altered or fudged data to support its argument. Wyrick keeps trying to explain, but she, as well as Kagan and Breyer, simply don't let him finish a thought. Breyer accuses Wyrick's expert - 1 of whose witness reports consists largely of printouts from the website Drugs.com - of shoddy science: "The key refutation of your expert rests on zero," he says. Wyrick keeps trying to talk. Kagan grows more and more furious. "Suppose that we said we are going to burn you at the stake, but before we do, we are going to give you an anesthetic before we burn you alive," the usually very temperate Kagan asks Wyrick. "Maybe you will feel it; maybe you won't."

When Wyrick's light goes on to show that he is out of time, Roberts addresses him directly: "Mr. Wyrick, to an extent that's unusual even in this court, you have been listening rather than talking. And so I'm happy to give you an extra 5 minutes, if you'd like."

It's the kind of public reprimand you rarely hear at the court, and whether it was directed at Sotomayor alone or the scrappy triumvirate of Kagan, Breyer, and Sotomayor, it's the kind of sentiment that the chief justice must think to himself a good deal on the bench but that he rarely allows himself to speak aloud. As Wyrick concludes his remarks, the liberal justices glower from their respective bad-justice chairs. Nobody likes to be called an asshole by the chief.

In Konrad's rebuttal, the animosity spikes up again when she tries to address the burning-at-the-stake hypothetical. Alito interjects that this is "an irrelevant point." Kagan retorts that "potassium chloride is burning someone alive; it's just doing it through the use of a drug." The 2 look like they could happily administer to each other a little snort of lethal injection at this point. The tension in the chamber is palpable and unpleasant. One side genuinely thinks the issue here is unscrupulous death penalty abolitionists and their bullying tactics. The other openly accuses the state of Oklahoma of lying in its pleadings.

Roberts worries almost obsessively about appearances at the court - appearances of partisanship and politicization, and also about justices who take ideological swats at one another in public. In September, in a speech at the University of Nebraska, he said he was worried that the partisan rancor in Washington might "spill over and affect us. ... That's not the way we do business. We're not Republicans or Democrats." Judges are different in his view; they are always supposed to be above that kind of thing. But as long has been said at the court, death is different too. It seemingly brings out the very worst in us all.

Often when you catch the chief in a situation like Wednesday's - in which the justices' gloves are off and their back teeth are showing - you get the sense that he wishes he weren't the only grown-up in the room. Or perhaps more correctly, that he didn't always have to be.

Source: Dahlia Lithwick, slate.com, May 3, 2015

Reflections on Lethal Drugs, Sleeping and Waking Up

I have always loved the Supreme Court.

As a law student, I made pilgrimages to the Court to listen to arguments. It fortified me and inspired me for the hard work and sacrifice ahead.

I proudly became a member of the Supreme Court bar and had the privilege of participating in briefs before the Court. Waiting in line yesterday to hear the arguments in Glossip v. Gross, I felt that familiar sense of anticipation: justice is possible here.

At issue was whether Oklahoma can use a drug called Midazolam in a 3 drug protocol used to kill prisoners by lethal injection. There was a disconnect between the nitty-gritty discussion about what it takes to kill a prisoner and the beauty and nobility of our surroundings.

Midazolam, the 1st drug administered, is supposed to render a prisoner unconscious and keep him or her unconscious until potassium chloride, the killing drug, has done its work.

Everyone agrees that a prisoner will die a horrible death if he or she is conscious when the potassium chloride is used. Potassium chloride feels like liquid fire.

But while Midazolam might reliably put a prisoner to sleep, there is no reliable scientific data to support the notion that a prisoner will remain "asleep" when the potassium chloride starts to burn through the body. Pain will wake up the prisoner. A series of botched executions in 2014 and much clinical and scientific evidence supports this chilling conclusion.

With no substantive response to Midazolam's uncertain utility, Oklahoma's lawyer made technical legal arguments about who had the burden of proof. When asked why a 3rd, paralyzing drug was used, he answered almost without realizing it: "to keep the prisoner from moving."

It saddened me to see the Court forced to sift through this rubble.

It made me wonder. Who is it that Oklahoma is really trying to put to sleep? And what will it take to wake up?

Should the prospect and reality of an innocent person being executed shock our systems to jolt us awake?

Should daily protests and palpable anger reflecting the fact that a significant segment of the citizenry has no confidence that it will be treated fairly by police, the criminal justice system or the courts provide the twinge that rouses us?

Should higher murder rates in regions of the country that use the death penalty with greater frequency enable us to discern reality from dream?

Some doze undisturbed. Or drift deeper into trance imagining that a return to firing squads and electric chairs will make us more civilized.

If we are not asleep, we must take the execution status quo by the shoulders and shake it hard to wake up.

We have the muscle to do it. According to the PEW Research Center, opposition to the death penalty continues to increase--now at 38%. Popular support for the death penalty continues to decline. Now just 56% of the public supports the practice in the abstract. And the devil is truly in the details.

I don't know what the Supreme Court will decide. However the Court rules, this struggle will not be over.

Using Midazolam in executions is a questionable practice at best. Let's make sure however, that it doesn't have long-term sedative effects on the public's consciousness.

The death penalty is preventing our nation's forward progress. It does not enhance public safety. It distracts us from addressing the root causes of crime and violence. It undermines our values of fairness and equality before the law.

Make some noise. Join the 90 Million Strong Campaign now. Learn how you can become engaged in ending the death penalty! Follow me at diannatncadp.

Source: Huffington Post, Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty, May 3, 2015 (wr)

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