Glossip v. Gross, the Eighth Amendment and the Torture Court of the United States

On June 29, 2015 the United States Supreme Court argued in Glossip v. Gross that executions may continue with the use of lethal drug cocktails including the use of midazolam, an extremely painful drug, which in effect, burns to death the condemned by scorching internal organs. The use of midazolam, according to the Court, does not constitute “cruel and unusual punishment” under the Eighth Amendment. The Court found that condemned prisoners can only challenge their method of execution after providing a known and available alternative method.

In dissenting views justices opened the legal door for future challenges to the death penalty. In a meticulously crafted dissent Justice Stephen G. Breyer joined by Justice Ruth Bader Ginsburg initiated a timely counterargument to capital punishment. This was joined by Justices Elena Kagan and Sonia Sotomayor in diverging dissents of their own. The dissents were significant in that they outline the legal framework for the abolition of the death penalty based on the Eighth Amendment. Nevertheless, Sotomayor and Kagan argued in separate opinions that the use of lethal chemicals in executions was intolerably painful.

In turn this begged the question, for many, as to whether or not executions could ever be legitimized since executions must necessarily involve physical or mental pain. In all democratic societies, intentionally inflicting pain on another human being is torture.

This article addresses the Court’s concerns, expressed in Justice Samuel Alito’s majority opinion, that protests against Glossip’s anticipated execution was a “guerilla war” against the death penalty and that inflicting physical or mental pain intentionally on a human being is an acceptable component of execution and consistent with the U.S. Constitution.

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In Gregg v. Gerogia (1976) the Supreme Court of the United States ruled in a 7-2 decision that capital punishment did not violate the Eighth Amendment. This in effect, reversed Furman v. Georgia (1972) which placed a moratorium on capital punishment in the United States. Robert Bork argued the case for the United States, that capital punishment and judicious use of the death penalty may be appropriate if carefully used. The Supreme Court argued that the Court was not prepared to overrule the Georgia legislature who has by law defined capital punishment an effective tool in the deterrence of future capital crimes and as an appropriate means of social retribution (retributive justice) against the most serious offenders

On April 29, 2015, the Supreme Court heard oral arguments in Glossip v. Gross, a case which challenged the use of the anti-anxiety drug midazolam in lethal injection executions. Petitioners argued in their brief to the Court that there is “undisputed evidence . . . that midazolam cannot reliably ensure the ‘deep, coma-like unconsciousness’ required where a State intends to cause death with painful drugs” (Brief for Petitioner at p. 29). Use of this drug to carry out executions by lethal injection does not comport with the Eighth Amendment’s prohibition on cruel and unusual suffering. In the last year alone, midazolam was used in several botched executions. Then on June 29, 2015, in a 5-4 decision, the Supreme Court issued its opinion in Glossip v. Gross, ruling that the anti-anxiety medication midazolam is constitutional for use as the first drug in a three-drug lethal injection formula. The case was brought by death row prisoners in Oklahoma, who argued that the state’s use of midazolam in this manner creates an “objectively intolerable risk of harm.”

The Glossip ruling evidenced two Justices directly challenging the legal foundation of capital punishment based on the Eighth Amendment which prohibits “cruel and unusual punishment.” Indeed, states such as Nebraska have recently abolished the death penalty based on the Eighth Amendment, making it the nineteenth state to do so, and the seventh to abolish capital punishment since 2007. Nonetheless, a majority of justices on the Supreme Court at the time – John Roberts, Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito – still maintain the constitutionality of the death penalty, as argued in Glossip.

In Baze v. Rees (2008), the Supreme Court reviewed the three-drug protocol then used for lethal injection by at least thirty states, in which the first drug, an short-acting barbiturate, rendered the prisoner unconscious, and the second and third drugs, a paralytic and potassium chloride, paralyzed the prisoner and stopped the heart. The Court noted that the first drug, the barbiturate, causes a “deep, coma-like unconsciousness” and therefore “ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs.” The Oklahoma drug protocol challenged in Glossip was also a three-drug protocol that uses a paralytic and potassium chloride as the second and third drugs, but it substitutes the benzodiazepine midazolam for the first drug, creating risk of “severe pain, needless suffering and a lingering death.”

As the Brief for Petitioner states:

“In Baze, there was consensus that sodium thiopental, if properly administered, would produce deep coma-like unconsciousness. With midazolam, the opposite is true. Midazolam is not approved for use as the sole anesthetic for painful surgery. Clinical studies showed that midazolam does not reliably induce deep unconsciousness; when used in surgery, patients felt pain. The medical consensus is that midazolam cannot generate deep, coma-like unconsciousness. There is also no substantial practice among the states of using midazolam for lethal injections. Although sodium thiopental was widely used in lethal injections for years, only four states have used midazolam in an execution, and only two have tried to use it as anesthesia. On these undisputed facts, the use of midazolam to create deep coma-like unconsciousness presents an “objectively intolerable risk of harm” (Baze, 553 U.S.).

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Midazolam is not a barbiturate, but a benzodiazepine commonly used in pre-operative settings to alleviate anxiety. It is the shortest-acting drug in the same class of anti-anxiety drugs as Xanax, Atavan and Valium. All of the experts who testified in a three-day hearing in Oklahoma in December 2014, including the state’s expert, agree that midazolam has a ceiling effect, above which additional dosing has no additional effect, and no analgesic (pain-relieving) qualities (Joint Appendix to Brief for Petitioner, medical testimony from three-day hearing at pp. 199, 256, 274). The four states which have used midazolam in lethal injection executions are Arizona, Florida, Ohio and Oklahoma. Three executions that used midazolam triggered formal state investigations into why they did not go as planned (Brief for Petitioner at p. 31). In all of these botched executions, the prisoners initially appeared to lose consciousness, but then started moving and demonstrating signs of struggle and suffering.

Glossip v. Gross originated in federal court in Oklahoma as a response to the botched execution of Clayton Lockett on April 29, 2014. Charles Warner was originally one of the Petitioners, but the Court denied a stay of execution in his case, and he was executed using midazolam in a three-drug formula on January 15, 2015, just eight days before the Court accepted this case for review. On January 28, 2015, the Court stayed the executions of the three Petitioners, Richard Glossip, John Grant and Benjamin Cole, who are Oklahoma death row prisoners. In their Petition for Certiorari, Petitioners asked the Court to “provide urgently needed guidance” to prisoners and courts addressing new, experimental lethal injection protocols.

In her dissent from the denial of a stay for Charles Warner, Justice Sonia Sotomayor, joined by three other justices, recognized that the district court relied on a “single purported expert” who testified from suspect sources and in a manner that contradicts empirical data. Justice Sotomayor explained, “In contending that midazolam will work as the State intends, Dr. Evans cited no studies, but instead appeared to rely primarily on the Web site www.drugs.com. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.”

Justice Breyer, who has served twenty years on the Supreme Court, never argued that the death penalty was unconstitutional. What both Breyer and Ginsburg argued was that new evidence over the past two decades had convinced them that the death penalty is costly, ineffective, and unreliable, not that it was necessarily inhumane. Their argument was based on cost-effectiveness, efficiency, and the real possibility of wrongful execution. More than one hundred death row inmates had their convictions or sentences dismissed in the last decade.

Nevertheless, in the majority opinion Justice Alito countered Sotomayor and Kagen’s view arguing that pain is simply part of what constitutes an execution. He states, “Because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.” [1] Breyer, nevertheless argued, that the broader issue of wrongful convictions takes greater precedence since executing innocent people can never be remediated. Moreover, Breyer and Ginsburg argued that “increasingly lengthy delays” of several decades between convictions and executions undermined the deterrence argument that executions deter crimes. [2]

Prior to Glossip, Justices Breyer and Ginsburg in essence echoed the opinion of Justice Harry Blackmun who, in 1994, argued that the death penalty in the United States was unable to be impartial toward minorities, specifically African Americans. Likewise, in 2008, Justice John Paul Stevens concluded that the death penalty was arbitrary and unreliable as a deterrent and ineffective in terms of punishment. However in Glossip, Justices Sonia Sotomayor and Elena Kagen, while not joining in Breyer and Ginsburg’s dissent, nevertheless wrote what could arguably be the strongest dissent. The two justices claimed that the majority on the court allowed a “method of execution that is intolerably painful – even to the point of being the chemical equivalent of burning alive.”

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Alito’s position is one in which the inflicting of pain on others, as torture, is a necessary component of execution. This is a plausible position to hold. However, in that Alito and the majority argue that torture does not contradict the U.S. Constitution and the Eighth Amendment is subject to serious question.

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As stated earlier, torture is the act of deliberately inflicting severe physical or psychological pain on a human being by another as a punishment or in order to fulfill some desire of the torturer or force some action from the victim. Torture, by definition, is a knowing and intentional act; deeds which unknowingly or negligently inflict suffering or pain, without a specific intent to do so, are not typically considered torture. But under U.S. law, ignorance of the law is no excuse.

Torture has been carried out or sanctioned by individuals, groups, and states throughout history from ancient times to modern day, and forms of torture can vary greatly in duration from only a few minutes to several days or longer. Reasons for torture can include punishment, revenge, political re-education, deterrence and even coercion.

Alternatively, some forms of torture are designed to inflict psychological pain or leave as little physical injury or evidence as possible while achieving the same psychological devastation. The torturer may or may not kill or injure the victim, but torture may result in a deliberate death and serves as a form of capital punishment. Depending on the aim, even a form of torture that is intentionally fatal may be prolonged to allow the victim to suffer as long as possible, such as half-hanging or even inadvertently seizing in pain from lethal injections.

In other cases, the torturer may be indifferent to the condition of the victim or simply take delight in the sadistic gratification of torture in whatever form.

This indifference best fits the Alito majority. On one hand, indifference may be its most compassionate form of torture, while on the other it very well could mean that sociopaths exist on the highest court in the land. And in Glossip the Eighth Amendment is once again desecrated and Alito’s majority decision exalts the deviant status of the Torture Court of the United States.

Edward J. Martin, Ph.D. is Professor of Public Policy and Administration, California State University, Long Beach, Graduate Center for Public Policy and Administration. His areas of research include political economy, sustainable development, welfare policy, and inequality. He is Editor-in-Chief for the International Journal of Economic Development. His publications have appeared in New Political Science, Contemporary Justice Review, International Journal of Public Administration, and Social Policy. He is co-author of Savage State: Welfare Capitalism and Inequality and Capitalism and Critique: Unruly Democracy and Solidarity Economics.

Notes:
1. Glossip v. Gross, June 29, 2015, No. 14-7955, SCOTUS, I, A, Majority Opinion, Justice Alito, Roberts, Thomas, Kennedy, Scalia, Oyez, ITT Chicago-Kent College of Law, Illinois Institute of Technology.

2. Death Penalty Focus, Working for Alternatives to the Death Penalty, http://www.deathpenalty.org, May 31, 2013.