Supreme Court Decision: Glossip v. Gross – Lethal Injection Doesn’t Violate the Constitution

Yesterday, in Glossip v. Gross, the Supreme Court decided, in a 5-4 decision, that the use of midazolam in the process of executing prisoners does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.  Justice Kennedy was the swing vote, siding with court’s more conservative majority.

Midazolam is supposed to render a person insensate to pain.  It’s administered as the first of 3 drugs to kill someone.  It’s supposed to render an inmate unconscious before a second drug is given to paralyze the prisoner.  Then a third drug is added which stops the heart.  3 inmates in Oklahoma argued that midazolam failed to do its job in 3 executions last year, as prisoners were moaning, gasping, and all sorts of other disturbing facts.  The court held that the lethal injection process works sufficiently well that it does not violate the Eighth Amendment prohibition on cruel and unusual punishment.  It reasoned, disturbingly in my opinion, that because the plaintiffs have not identified an available alternative, better means of being executed, their challenge fails.  Oklahoma is now free to execute the three prisoners.

The interesting part of the decision is that both Breyer and Ginsburg, who penned their own separate dissent, indicated that they may be ready to declare the death penalty unconstitutional.  Breyer wrote:

“The answer is that the matters I have discussed, such as lack of reliability, the arbitrary application of a serious and irreversible punishment, individual suffering caused by long delays, and lack of penological purpose are quintessentially judicial matters. They concern the infliction — indeed the unfair, cruel, and unusual infliction — of a serious punishment upon an individual. I recognize that in 1972 this Court, in a sense, turned to Congress and the state legislatures in its search for standards that would increase the fairness and reliability of imposing a death penalty. The legislatures responded. But, in the last four decades, considerable evidence has accumulated that those responses have not worked. Thus we are left with a judicial responsibility. The Eighth Amendment sets forth the relevant law, and we must interpret that law. … For the reasons I have set forth in this opinion, I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question.”

Breyer noted that most of the country did not use the death penalty and that the United States was an international outlier in embracing it.  It’s a disturbing decision to read, as some as the brightest legal minds, in the words of Justice Harry Blackmun, “tinker with the machinery of death.”

The full text of the decision can be read here: http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf.