Don't ditch the gurney yet.

Photographer: Paul Buck/AFP/Getty Images

Death Penalty Survives, for Now

Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competition” and “Divided by God: America’s Church-State Problem -- and What We Should Do About It.”
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Other justices appointed by Republicans, most notably Harry Blackmun, turned to the left toward the end of their careers, as Justice Anthony Kennedy has gradually and selectively done. But Blackmun’s turn famously included a refusal to tinker with the “machinery of death,” and a consequent rejection of capital punishment. On the last day of the U.S. Supreme Court term, Kennedy showed he wasn’t even close to there. He provided the fifth and deciding vote Monday to reject death-row inmates’ claim that the drug midazolam, part of the drug cocktail designed to render you unconscious before killing you, is unconstitutionally ineffective.

QuickTake Lethal Injections

Meanwhile, the two aging liberals, Justices Stephen Breyer and Ruth Bader Ginsburg, called for advocates to argue that the death penalty as a whole is unconstitutional -- a sign of what could happen if Hillary Clinton becomes president and if Kennedy or Justice Antonin Scalia retires before Breyer and Ginsburg do.

The case, Glossip v. Gross, attracted attention during oral argument, when Justice Samuel Alito accused death-penalty abolitionists of waging a “guerrilla war” against capital punishment. What Alito meant was that abolitionists first pressured pharmaceutical companies not to make certain drugs that cause unconsciousness available for purposes of executions. Pentobarbital and sodium thiopental are both known to be effective, but the European companies that make the drugs, responding to pressure, won’t provide them for executions.

Then, once those drugs were effectively unavailable, the abolitionists challenged the use of midazolam as ineffective and therefore a form of cruel and unusual punishment under the Eighth Amendment. No one doubts that, if a prisoner isn’t rendered unconscious by the first drug, he will suffer cruel and unusual punishment when the second drug paralyzes him and the third kills him in excruciating pain. The question for the court was whether midazolam does a good enough job knocking out the prisoner.

As it turned out, Alito’s comments in the oral argument prefigured the opinion he wrote for the court. In rejecting the prisoners’ claims, his first and most significant argument was that to win, they had to “identify a known and available alternative method of execution that entails a lesser risk of pain.” The prisoners argued that they shouldn’t have to do that. Alito’s point was that everyone admits the other drugs, pentobarbital and sodium thiopental, work better -- but the abolitionists had already succeeded in making those drugs unavailable. If the abolitionists couldn’t name an available alternative that would work better, he held, they were legally stuck with midazolam. The guerrilla strategy therefore failed.

Alito then turned to the use of midazolam itself, and held that a district court wasn’t wrong when it said the drug didn’t fall afoul of the prohibition on cruel and unusual punishment. True, the April 2014 execution of Clayton Lockett in Oklahoma went badly, he acknowledged. But the problem was the IV access point, not the drugs, in the lower court’s estimation, which Alito upheld.

Kennedy, keeping his head down, joined Alito’s opinion without comment. Justice Sonia Sotomayor wrote a dissent, joined by all the court’s liberals, rejecting both Alito’s deference to the district court and his “novel” notion that the inmates had to name an alternative drug.

But perhaps the most fascinating aspect of the case was a separate dissent by Breyer, joined by Ginsburg, that essentially called for the abolition of the death penalty. “Rather than try to patch up the death penalty’s legal wounds one at a time,” Breyer wrote, he “would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

Breyer then laid out a complete legal argument for the abolitionists to adopt. In his view, the death penalty suffers from “(1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose.” As a result, he concluded, “most places within the United States have abandoned its use.” Breyer, who’s statistically literate and believes in statistical rationality, marshaled statistical evidence gathered over recent decades to support in particular the claim of arbitrariness.

What’s particularly newsworthy about Breyer’s opinion and Ginsburg’s joining of it is that it’s the first time in the last two decades that any of the court’s liberals have embraced full-on death penalty abolitionism. Breyer has been on the court since 1994, when he replaced Blackmun -- and this is the first time he’s made such an argument. Ginsburg joined the court in 1993 -- and hasn’t made this argument before, either. And the courts two newest liberals, Sotomayor and Elena Kagan, notably didn’t join Breyer’s dissent. Abolitionism, it seems, is something that comes late in one’s judicial life.

Justices Antonin Scalia and Clarence Thomas each wrote concurrences directly responding to Breyer. Scalia didn’t disappoint, at least not rhetorically. He described the call for abolition as “Groundhog Day,” apparently a reference to the Bill Murray film in which a single day is replayed ad infinitum and ad nauseam. He added that Breyer and Ginsburg were “waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist[ing] that now, at long last, the death penalty must be abolished.”

Breyer’s arguments were “full of internal contradictions and (it must be said) gobbledy-gook.” At this point in the term, Scalia’s rhetorical excesses no longer sound clever -- they’re starting to seem a little desperate.

Perhaps most preposterously, Scalia concluded by saying that “by arrogating to himself the power to overturn” the people’s “decision” to keep the death penalty, “Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.” Breyer, who with some justice considers himself a true child of Enlightenment rationality, was not convinced.

Thomas’s opinion took on Breyer’s very rationalist use of regression studies to suggest the death penalty was applied arbitrarily. Thomas pointed to the horrible facts of the prisoners’ particular crimes in an attempt to undermine the general effects of the statistics.

What’s important about all this is that it reminds us of how much turns on the next presidential election. If Hillary Clinton is elected, and Kennedy or Scalia retire, a more liberal justice might well join Breyer and Ginsburg -- at which point Sotomayor and Kagan won’t stand in the way. For abolitionists, there’s now light at the end of the tunnel.

To contact the author on this story:
Noah Feldman at nfeldman7@bloomberg.net

To contact the editor on this story:
Stacey Shick at sshick@bloomberg.net