Symposium: “Groundhog Day” indeed

Deborah W. Denno is the Arthur A. McGivney Professor of Law at Fordham University School of Law.

“Welcome to Groundhog Day,” begins Justice Antonin Scalia in his concurrence in Glossip v. Gross, a narrow five-to-four opinion in which the Court held that three death-row inmates failed to establish that the drug midazolam created a substantial risk of severe pain when used as the first of three drugs in Oklahoma’s lethal injection procedure. Assuming that Justice Scalia is referring to the movie “Groundhog Day” starring Bill Murray, a romantic comedy in which the lead character experiences the same day over and over, it seems an oddly lighthearted way to respond to Justice Stephen Breyer’s dissent and to yet again pass on the opportunity to evaluate a method of execution that seemingly becomes more reckless each time it is used.

In Glossip, Justice Anthony Kennedy broke traditional lines to join the Court’s more conservative members in a majority decision written by Justice Samuel Alito. But it’s the stunning dissents that have caught much of the legal world’s eye so far. Justice Sonia Sotomayor’s dissent (joined by Justices Breyer, Ruth Bader Ginsburg, and Elena Kagan) focuses on the available-alternative requirement in response to the Court’s holding that the inmates failed to identify an alternative method of execution that would create a less severe risk of pain.

The other dissent, by Justice Breyer (joined by Justice Ginsburg), recommends broader briefing on whether the death penalty is unconstitutional. Much of Justice Scalia’s concurrence pounces on Justice Breyer’s dissent and thus the familiar pro- and anti-death-penalty battle begins. Justice Scalia’s reference to “Groundhog Day,” particularly as a lead-in to questioning Justice Breyer, quips in his mind the familiar and repetitious scene of inmates claiming their sentences are cruel and unusual only to be greeted by “a vocal minority of the court” pointing to abolitionist studies showing that “at long last, the death penalty must be abolished for good.” But the real Groundhog Day that Justice Scalia never acknowledges is the proclivity of legislatures, courts, and prison personnel over the last thirty-plus years to perpetually disregard the oftentimes striking errors and ignorance about the lethal injection procedure and the repeated and increasingly egregious botched executions that have resulted from such inexplicable incompetence. The unfettered drug substitutions that states like Oklahoma have made in their attempts to adhere to their execution schedules have resulted in an unreliability that heightens the risk that the execution process will violate the Eighth Amendment. Over and over Justice Scalia details in Glossip and his prior opinions the crimes inmates commit. But in no way does he acknowledge the endless repetition of mistakes and brutality that departments of corrections have continued to make even when the whole world is watching the way that they conduct their executions. It does not take an “abolitionist,” but rather any concerned citizen, to realize that there is something terribly wrong with the way this country conducts executions.

The intertwining strands conflating the issues of lethal injection with those of the death penalty itself have existed for decades, often serving as unfortunate reminders of the measures to which states will go to perpetuate executions. They also hark back to Baze v. Rees, the Court’s 2008 plurality decision upholding the Eighth Amendment viability of Kentucky’s lethal injection protocol. In Baze, Justice John Paul Stevens used his concurrence as a platform from which to question the constitutionality of the death penalty. Yet despite the power such platforms can bring, they can also fuel the oft-perceived link between litigation over methods of execution and the potential abolition of the death penalty. This link is a double-edged sword that can distract legislatures, courts, prison personnel, and indeed even the Supreme Court from examining the actual issue under consideration – the constitutionality of a state’s execution protocol.

Like Baze, Glossip is as much a case about the ongoing existence of the death penalty as it is about one state’s use of one particular drug in its lethal injection protocol. Justices Scalia and Alito made this connection clear during oral arguments in Glossip, indicating that threats against a state’s lethal injection protocol are threats against the death penalty itself. Justice Alito asked, for example, “Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?” Justice Scalia, meanwhile, blamed “the abolitionist movement” for this country’s shortage of lethal injection drugs, a perspective that pervades Glossip. While Justice Sotomayor rightly notes in Glossip that the inmates should not be blamed for these circumstances, I question both the argument that abolitionists are responsible for the drug shortage and the majority’s resulting disregard for how states create their lethal injection protocols.

The reality is that there are numerous causes of lethal injection drug shortages that have nothing to do with the abolitionist movement. In 2014, a report published by the Government Accountability Office charted the number of active drug shortages among a wide range of drug companies, including one called Hospira, from January 2007 through June 2013. This report found that the immediate cause of the shortages was slow or halted production of chemicals needed to create the companies’ drugs, which in turn affected Hospira’s ability to produce sodium thiopental. In 2007, sodium thiopental was the first of the three drugs that all states used in their lethal injection protocols. But at that time Hospira was also facing the reality of diminished demand for its sodium thiopental in hospitals and elsewhere because the drug had been increasingly replaced by newer and more suitable drugs such as propofol. In other words, Hospira’s difficulties producing sodium thiopental were initially entirely independent of factors pertaining to lethal injection. It so happens that Hospira’s shortage did have a substantial impact on states’ abilities to execute: Hospira had originally intended to resume production of sodium thiopental at its plant in Italy, but Italian authorities threatened legal action if Hospira could not successfully prevent the drug from “being diverted to departments of correction for use in capital punishment procedures.” Unwilling to risk potential liability, Hospira stopped manufacturing sodium thiopental entirely in January 2011. Thus the majority opinion in Glossip opens almost immediately with the claim that “anti-death-penalty advocates” were the force behind the Italian government’s decision to stop the sale of sodium thiopental for use in this country. Yet these claims are extraordinary and unsupported – while Europe’s prohibition of the death penalty had become an American problem for the death penalty, it would be erroneous at best to classify European countries or the European Union itself as “abolitionists” when the countries and their citizens are safeguarding the encroachment of a political decision to abolish the death penalty. Putting foreign governments without the death penalty under the same rubric as “abolitionists” seems a stretch. As Justice Alito notes, when states tried to replace sodium thiopental with pentobarbital, the Danish manufacturer of pentobarbital stopped selling the drug for use in executions. But to claim, as the Glossip majority does, that “[a]nti-death penalty advocates so lobbied the Danish manufacturer” would be to ignore that Denmark is an anti-death-penalty country and its citizens were outraged. Meanwhile, other countries would have no objection to selling sodium thiopental or pentobarbital to the states but, since July 2013, that has not been possible.

Indeed another powerful force behind lethal injection drug shortages is the federal court ruling in the 2013 case of Cook v. FDA. That ruling, affirmed by the U.S. Court of Appeals for the District of Columbia Circuit, held that the FDA must prohibit the importation of drugs that fall below the agency’s standards, including drugs used in lethal injection protocols. As a result, the FDA informed Nebraska in May 2015, for example, that the state could not import sodium thiopental from India for use in lethal injection executions even though the Nebraska Department of Corrections had already paid $54,400 for the drug.

Yet another source of lethal injection drug shortages comes from organizations and individuals who are typically classified as pro-death penalty – physicians and medical professionals – but who do not wish to professionally associate themselves with the death penalty. Over time this group has come to include pharmacists, especially those involved in compounding pharmacies.   While doctors have long been involved in the lethal injection execution process, their role has been controversial and increasingly dissuaded by medical organizations on the basis that doctors should promote health rather than death. Likewise, the International Academy of Compounding Pharmacists has recently discouraged its members from providing lethal injection drugs, the group’s first official stance on the issue. Any potential link with the death penalty is not a good business model and medical professionals do not need abolitionists to tell them that.

Glossip rests heavily on the conflated themes of death penalty abolition and its purported association with lethal injection drugs. The majority opinion implies that abolitionists have made their drug-shortage bed and now death row inmates must sleep in it by facing execution with lower-quality (but not unconstitutional) drugs. It is easier to scapegoat abolitionists than it is to acknowledge that there is much more at play here: Given the quality of the experts offered and the amount of research that petitioners provided about the dangerous effects of midazolam, it is inexcusable that the Court has enabled for decades a system of execution that has only become more reckless and egregious with each passing year.  Don’t blame the abolitionists for that – they are just among the many messengers.