Is the Death Penalty on Life Support?
By Kevin Heade, JD
Attorney at the Central Arizona National Lawyers Guild
January 3, 2015

The Republican primary season is heating up, and the GOP’s Presidential candidates are foaming at the mouth to declare their resolve to carpet-bomb thousands of innocent people in the Middle East or murder the families of suspected terrorists in order to gain traction in Iowa or New Hampshire. Such disdain for international law and norms from the GOP isn’t surprising. So the outcome of Glossip v. Gross wasn’t shocking. In Glossip, the four conservative justices of the Supreme Court teamed with Justice Kennedy to find that Oklahoma’s execution protocol is constitutional.
Glossip challenged Oklahoma’s execution protocol which involved a three-drug protocol, midazolam, pancuornium promide, and potassium. The petition for relief was part of an ongoing national litigation strategy of death row inmates who have sued states on First Amendment grounds to learn how the state intended to carry out executions in their respective cases. This ongoing national litigation also included 1983 challenges claiming that particular protocols established by a state will result in cruel and unusual punishment.
Prior to Glossip, the apparent standard required for a death row petitioner to prevail required the petitioner to demonstrate a “substantial risk of serious harm” that “prevents prison officials from pleading that they were ‘subjectively blameless for purposes of the Eighth Amendment.” This standard, articulated in Baze v. Rees, was adopted after the Supreme Court was presented with challenges to Kentucky’s execution protocol claiming that the haphazard ways Kentucky’s death squad inserted intravenous catheters in condemned prisoner’s carried an unjustifiable risk of pain if the first drug, sodium thiopental, was not administered properly.
The litigation surrounding Baze and other challenges across the country brought international scrutiny to the morality of the death penalty. Hospira, the domestic manufacturer of sodium thiopental, a “fast-acting barbiturate,” decided that being the major supplier of a drug used in death cocktails did not align with its values as a pharmaceutical company. Rather than continue to play a role as executioner, Hospira ceased its production of the drug.
States then turned to another barbiturate, pentobarbital, which was also used without other drugs by some states, to carry out executions. Lundbeck Inc., the Danish manufacturer of pentobarbital then restricted the sale of the drug before selling the rights to the drug to another company to prevent prisons from obtaining it for use in executions.
Hospira and Lundbeck’s actions spawned a wave of criminal activity among state officials, who have sought to circumvent federal drug laws and European bans on exporting drugs for use in executions. State officials have resorted to drug smuggling and other crafty efforts to avoid breaking the law, including importation of drug chemicals for mixing in local apothecaries. These shady efforts by state officials were challenged by death row inmates, who first have to prevail in First Amendment litigation to learn how states were planning on carrying out executions, and then to prove that new methods, often involving unreliable drug sources, would create an objective risk of substantial harm articulated in Baze.
Glossip challenged the drug midazolam, which is a benzodiazepine without analgesic properties, that is alleged to have a “ceiling effect” which means that increased doses do no result in rendering the patient “insensate to pain.” Justice Sotomayer’s dissent in Glossip highlighted the faulty science and unreliable expert testimony presented to the district court which was accepted by the majority as sufficient to deny Glossip’s Eighth Amendment claim.
However, on review of Justice Alito’s opinion and Justice Scalia’s concurrence, and even the casual observer can discern that four conservative members of the Court dismiss Supreme Court precedent and ignore the science calling for an appreciation of the “evolving standards of decency” in Eighth Amendment jurisprudence.
Rather than evaluate the role of the death penalty in 21st Century America, Alito and Scalia imagine “guerrilla warfare” being assailed against the death squads employed by a smaller and smaller number of county prosecutors in a declining number of states that choose to carry out the death penalty.
Scalia, a Catholic, who has previously stated that he would resign if the “Catholic doctrine held the death penalty to be immoral,” has as much trouble defending his historical interpretation of the Supreme Court’s jurisprudence on the Eighth Amendment and the death penalty as he does in explaining why his personal views aren’t at odds with his faith. Don’t expect Scalia to follow in John Boehner’s footsteps any time soon, even as Pope Francis pleads with Congress to abolish the death penalty and announces a Holy Year of Amnesty, which includes a call to abolish the death penalty worldwide. Scalia (and Alito, Thomas, and Roberts) will never let experiences with the death penalty on the Court cumulate to the point that it becomes obvious that “the imposition of the death penalty represents ‘the pointless and needless extinction of life with only marginal contributions to any discernible social or public purposes. A penalty with such negligible returns to the State [is] patently excessive and cruel and unusual punishment violative of the Eighth Amendment.’”
However, the tide is turning against the death penalty. Public opinion has shifted dramatically in favor for life in prison as an alternative to the death penalty. States continue the trend toward abolition. Perhaps more importantly, Justice Breyer, like other justices before him who were forced to wrestle with the myriad of constitutional issues involving the constitutionality of the death penalty, has come to question whether the ultimate punishment can remain constitutional in the 21st Century. Breyer’s dissent in Glossip shifted the emphasis of the abolition movement away from a state-by-state strategy and looking for the case that could sway Justice Kennedy, beckoning the death knell for the death penalty.
If you are on the fence, or even if you are on the wrong side of the fence and are easily persuaded by the unbecoming “gobbled-gook” that Scalia offers as an originalist interpretation of the Constitution, take the time to compare Scalia’s work on the subject with that of Brennan and Marshall in Furman. You will see that the pro-death penalty advocates like Scalia rely on dehumanizing death row inmates by emphasizing the gruesome nature of the crimes committed condemned while also ignoring all objective indicia demonstrating that the death penalty cannot be applied constitutionally. Brennan’s explanation of why the death penalty is excessive under the Eighth Amendment because “it is nothing more than the pointless infliction of suffering” that “does not comport with human dignity” cannot be denied. Brennan’s points on the infrequency of the application of the death penalty are mirrored over forty years later in Breyer’s dissent in Glossip. Marshall’s concurrence in Furman provides a historical overview of the Eighth Amendment, which is described as a right independent of the judgment of legislatures, which serves as “our insulation from our baser selves.”
Scalia, Alito, Thomas, and Roberts can not provide a justification for continuing the cruelty of the death penalty in light of the views articulated by Brennan, Marshall, Blackmun, Powell, Stewart, White, Douglas, Stevens, Breyer, and Ginsburg over the years.
We can only hope that the right case is brought to the Supreme Court soon, and that President Obama acts on his inkling to grant clemency to federal death row inmates, but that shouldn’t prevent us from continuing at home with the state-by-state strategy toward abolition. Here in Arizona, there is some hope that the Arizona Supreme Court may eventually rule that Arizona’s scheme for death is arbitrary and capricious. If you live in one of the counties with “America’s Deadliest Prosecutors,” you can start by working to elect prosecutors who won’t waste local resources seeking the death penalty for political gain.
We can also continue these conversations with our neighbors and family, pointing out that the death penalty is morally reprehensible, fiscally irresponsible, arbitrarily applied, geographically disparate in use, and puts us in the company of China, Iran, and Saudi Arabia as a nation. If the moral arc of the universe is long and bent toward justice, we may be living near that moment when we show the rest of the world that our standards of decency have evolved to the point where we finally recognize human dignity in all lives. Sooner or later, we will prevail in abolishing the death penalty. For now, though, the pressing question remains, “Will Justice Kennedy side with us?”
Edited by Brenna Carpenter, JD Candidate 2017, Sandra Day O’Connor College of Law on behalf of the Law Journal for Social Justice.

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