“Welcome to Groundhog Day,” began Supreme Court Justice Antonin Scalia, setting the tone for his refutation of Justice Stephen Breyer’s multi-tiered dissent in this year’s Glossip v. Gross ruling. Scalia, joined by Clarence Thomas, fiercely defended of the constitutionality of capital punishment and the use of a specific drug in lethal injections. The two justices underscored the futility of objections to the death penalty as violations of the “cruel and unusual” provision of the Eighth Amendment. However, by failing to give much insight into its rationale for approving the drug, the Court gave petitioners a nearly impossible legal burden.
Glossip v. Gross outlines the expectation placed on challengers of the death penalty on constitutional grounds. In this case, four death row inmates from Oklahoma attempted to prove that midazolam, the anesthetic that the state uses as the first of a three-step lethal injection drug procedure, leads to a cruel and unusual infliction of pain. The death row inmates who filed the action needed to present at least two distinct proofs: first, that the chemical creates “demonstrated risk of severe pain” and second, that the risk is substantial in comparison to “known and available alternatives.”
The majority opinion written by Justice Samuel Alito offered evidence that midazolam does not subject inmates to an intolerable level of suffering. First, the Court affirmed the “virtual certainty” of the lower Oklahoma District Court that midazolam puts individuals in “a sufficient level of unconsciousness to resist the noxious stimuli” of the successive drugs. The Court also noted procedural safeguards against blunders that might reduce midazolam’s effectiveness.
Such information gives us an idea of the Court’s acceptable standard of pain in regards to lethal injection. The ambiguity of terms like “pain” and “substantial” makes it difficult to ascertain the determinants of cruelty in the Court’s definition, but legal language is inevitably pregnant with subjectivity.
However, the task of presenting a preferable alternative seems unrealistic, given that its success rests on the Court’s willingness to define what makes an option better. It is difficult to discern the criteria that the death row inmates were supposed to meet to prove that “known and available” alternatives to midazolam existed. They lacked adequate instructions for how to argue for the superiority of other execution methods. Furthermore, they were not told whether to identify a preapproved alternative or suggest an entirely new one.
The Court’s unsatisfactory review of “cruel and unusual” indicates that our Constitution, at least as it is interpreted today, may not allow for sufficiently diverse considerations to prohibit unnecessarily painful punishment. Scalia claims that Breyer “contort[s] the constitutional text … redefining ‘cruel’ to mean ‘unreliable,’ ‘arbitrary,’ or causing ‘excessive delays,’ and ‘unusual’ to include a ‘decline in use.’” The validity of Breyer’s empirical data on these four criteria is beside the point. The more important takeaway is that Scalia’s unequivocal rejection of what does not constitute “cruel” or “unusual” contrasts with his general comments on how the Court has always defined the phrase.
Scalia argues that the Supreme Court has consistently read the Eighth Amendment to comply with “the evolving standards of decency that mark the progress of a maturing society.” However, he does not specify the system or principle currently used to guarantee that the death penalty reflects contemporary morals. On the other hand, some of Breyer’s criteria, like unreliability and arbitrariness, seem to represent more tangible ways to judge whether an execution method passes the evolving standard. Scalia puts much emphasis on the “decency rule” but does not tell us if it contemplates the factors that most concern us as individuals and as a society in dealing with inmates, such as culpability, rehabilitative potential, physical pain, and mental distress.
Compared to past rulings that shed a contentious yet critical light on the severity of capital punishment methods, Glossip v. Gross is reticent on the issue. For instance, the landmark decisions Furman v. Georgia (1972) and Gregg v. Georgia (1976) contain impressive arsenals of rationales for judging whether the death penalty violates the Eighth Amendment. The justices in Furman and Gregg, although offering disparate reasoning for the same position, pinpoint specific problems with implementing the death penalty, from intrinsic immorality, to fulfillment of social ends, to the punishment’s disproportionality to the crime. The conditions do not produce a consensus, but they do indicate the importance of evolving standards of decency. For example, the Gregg Court devoted a sizable component of its opinion to discussing the discretion of juries and the risk of arbitrariness in imposing the death penalty, but in doing so it provided a lengthy and clearer consideration of criteria that could determine cruelty and unusualness. In the aftermath of Glossip v. Gross, in contrast, we are left imagining what the defendants could have done to strengthen their case.
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