On Monday, the Supreme Court ruled that the use of midazolam in lethal injections does not constitute cruel and unusual punishment, despite its use in a spate of botched executions. But death penalty abolitionists remain hopeful in the bigger fight to end capital punishment altogether.
Handing down the majority opinion in Glossip v. Gross, Justice Samuel Alito asserted states must have access to means of execution:
“Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” And 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.
Although his statement is alarming, it does not mean that midazolam — and the death penalty itself — can’t be fought in the future.
In Oklahoma, Clayton Lockett writhed in pain for 43 minutes when midazolam was administered, and Joseph Rudolph Wood similarly gasped for close to an hour. Should another botched execution occur in the future, plaintiffs may be able to fight the drug’s use on other grounds.
“I would fully expect that petitioners in state and federal courts will continue to challenge methods that they have reason to believe may cause torture. The court was very clear in this case to say that its finding that midazolam was OK was in the context of what the lower court had found,” Director Cassandra Stubbs of the ACLU Capital Punishment Project told ThinkProgress. “But that does not mean that’s the outcome we should expect in future cases, with respect to whether or not midazolam is likely to cause pain. Midazolam has no business in lethal injection protocols. We know that it cannot do what it’s supposed to do.”
“The reality is that this drug doesn’t do what it’s supposed to do,” echoed Executive Director Diann Rust-Tierney of the National Coalition to Abolish the Death Penalty (NCADP). “There’s ample scientific evidence to support that. Hopefully, state officials will act responsibly and address the gap between what is asserted the drug does and what every expert says it does.”
Moreover, the dissent penned by Justice Breyer and joined by Justice Ginsburg points to the unconstitutionality of the death penalty itself, and gives abolitionists serious reason to stay optimistic. Breyer wrote:
Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question… For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].
Stubbs and Rust-Tierney interpret that skepticism as a sign that the death penalty may come under intense scrutiny in the future.
“The ACLU Capital Punishment Project represents defendants in a number of states. We will continue to advocate on their behalf. We have and will continue to look closely at arguments that the death penalty is unconstitutional under various state constitutions, and look for opportunities to put forth the kind of evidence that we saw in the dissent,” Stubbs concluded.
And with public support for the death penalty on the decline, NCADP hopes to direct capital punishment opponents towards the 90 Million Strong Campaign to halt all executions — a campaign backed by a number of influential organizations, including the NAACP, Amnesty International, the National LGBTQ Task Force, and Alliance for Justice.
“States are continually on a quest to find a way of killing people that complies with the Constitution. At one point they thought the electric chair would do it; at one point they thought the gas chamber would. Now lethal injection is proving to be as problematic as all the others,” Rust-Tierney explained. “Our focus is continuing to educate the public and continuing to empower the people who know this is the wrong thing. We’re going to be working state by state to take this to legislators and the people.
“As Justice Breyer points out, all the evidence suggests it’s time to finally end the death penalty, because it’s not serving a penological purpose. It’s not enhancing public safety. “