Symposium: The death penalty lives to fight another day

Andrew Brasher is the Solicitor General of Alabama, which filed an amicus brief supporting the respondents. 

The story of Glossip v. Gross is that no lethal injection protocol can satisfy people who believe there should be no executions. That has always been the subtext of the case. And now that the Justices have issued their opinions, it has become explicit.

As Justice Alito and others noted at oral argument, the prisoners’ claims about midazolam are part of a coordinated effort to kill capital punishment by a thousand cuts. The prisoners’ lead expert witness in Glossip, which ostensibly concerned midazolam, played the same role in Baze v. Rees, which ostensibly concerned pentobarbital. He unsurprisingly opined that neither should be used in executions. The Arizona Public Defender’s Office successfully sued the federal Food and Drug Administration to deny states the use of sodium thiopental in executions. Then the same lawyers argued in Glossip that states should use sodium thiopental instead of midazolam because sodium thiopental is a better drug. The prisoners and their supporters may be genuinely concerned about midazolam, but we shouldn’t kid ourselves about their overarching goal.

In my experience, most capital litigation suffers from this disconnect between the means and the ends. Death-row inmates raise constitutional claims that, if successful, would result in a retrial or a modified execution protocol. But what they really want is a de facto life sentence through delay. When Alabama changed the first drug in its execution protocol from pentobarbital to midazolam, prisoners suing the state just amended their complaints using the “find and replace” function. In one method-of-execution case, Alabama agreed to change its execution protocol to the method a prisoner said he wanted; the prisoner then sued to challenge the constitutionality of his own proposed method of execution.

To be clear, I don’t begrudge litigants or lawyers for using every means at their disposal to delay or avoid an execution. I just think our constitutional law should make them be honest about it. Why pretend these disputes are about a particular method of execution when they clearly go to the viability of capital punishment itself?

Fortunately, the Court in Glossip refused to suspend disbelief. The Court affirmed on two grounds – one broad, and one fact-specific. First, the Court held that there was no constitutional violation because “the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain.” As the Court explained, one of “the substantive elements of an Eighth Amendment method-of-execution claim” is that a prisoner must “plead and prove a known and available alternative.” Because the prisoners could not meet that standard, the Court reasoned that their claim failed as a matter of law.

Second, the Court held that the lower court’s fact-findings about midazolam were not clearly erroneous. Almost every lower court to have considered the question has reached the same conclusion: midazolam is capable of rendering someone unconscious and, therefore, eliminates any substantial risk of severe pain that might be caused by administering the other drugs in a three-drug lethal-injection protocol. Despite the arguments in Justice Sotomayor’s dissent, a fact-finding that has been reached independently by numerous lower courts can hardly be characterized as “scientifically unsupported and implausible.”

Although the Court could have resolved this case with its fact-specific holding about midazolam, it is good for the fair administration of capital punishment that it did not. The states did not begin using midazolam in lethal injections because good government demanded it. Instead, they changed to midazolam because drug manufacturers gave in to anti-death-penalty protests and stopped providing the states with thiopental and pentobarbital. And the cycle is continuing; manufacturers of midazolam have recently suggested that they will stop providing it to states as well. So a fact-bound ruling about midazolam would merely have kicked the can down the road.

The Court’s first holding, on the other hand, should end much of the litigation about methods of execution. As my office explained in an amicus brief joined by twelve other states, the way to ensure that the government can carry out lawful executions in this fluid environment is to require plaintiffs to identify a readily available alternative to the government’s method of execution as a part of their Eighth Amendment claim. At the very least, that rule should reduce prisoners’ incentives to challenge a state’s lethal injection protocol as a way to prevent their execution. It may also set back the campaign to make execution drugs unavailable to the states.

It is telling that Justice Stephen Breyer openly joined the death-penalty abolition effort with a dissenting opinion that asks for briefing on the constitutionality of capital punishment.   I disagree with almost everything Justice Breyer says in his dissent. But I think his broader point is well taken. It is hard to argue that the death penalty is a strong deterrent when capital cases take twenty-five years to process—in part because of litigation like Glossip. On the other hand, I suspect it is also hard to get people excited about a death-penalty abolition movement when old age is the leading cause of death on California’s death row. Maybe if we stopped fighting about how we carry out executions, we could more honestly debate whether we should have executions at all.

In short, the Court’s decision in Glossip should introduce some much-needed honesty into litigation about capital punishment. If someone is truly challenging the constitutionality of a specific method of execution, then they should identify a better alternative. If they can’t or won’t, then the courts should treat the litigation for what it is: a challenge to the constitutionality of the death penalty itself. Either way, the legal system will be better off.