WASHINGTON, DC — The drug midazolam may or may not be effective in preventing death row inmates from experiencing the excruciating pain caused by the other drugs Oklahoma wants to use to execute three inmates. This pain, which Justice Elena Kagan likens to the sensation of being burnt alive, would violate the Constitution’s prohibition on cruel and unusual punishment under any plausible interpretation of the Eighth Amendment. The issue in Glossip v. Gross, which the justices heard on Wednesday, is whether very high doses of midazolam dull the pain of execution sufficiently to render Oklahoma’s methods constitutional.
Early on in the argument, Justice Sonia Sotomayor cites the case of Joseph Rudolph Wood, an Arizona inmate who spent two hours in apparent agony during a botched execution that began with a massive dose of midazolam. Almost immediately, however, the most conservative justices question whether anyone can really know that Wood suffered because midazolam is not effective. What if the execution was not “properly conducted,” Justice Antonin Scalia asks, a concern echoed by Chief Justice John Roberts who suggests that Wood may have suffered because of a problem with his “veins.”
Justice Samuel Alito, in an early sign that this argument is about to take an extraordinarily ghoulish turn, suggests that not enough inmates have suffered Wood’s fate for anyone to be able to determine whether midazolam is effective for use as an execution painkiller. After asking how many executions have made use of this drug — the answer is 15 — Alito tells Robin Konrad, the attorney arguing against using midazolam, that she is only “talking about one” execution. Later in the argument, Alito claims that the question of whether midazolam is a sufficiently effective painkiller may be unknowable, since the high doses Oklahoma wants to use in its executions are toxic. “If it is a lethal dose,” Alito asks, “how are you going to do a study” on whether high doses of midazolam dull the pain of an execution?
To the liberals on the Court, the case appears to boil down to a question Justice Kagan brings up over and over again. What if all we know about the effectiveness of midazolam is that “we can’t know” if it is effective? To drive this point home, Kagan offers a morbid hypothetical of her own: suppose that a state wished to burn an inmate alive at the stake, and they offered the inmate a painkiller that may or may not render this method of execution painless. Would that make this method of execution acceptable? The fatal drugs Oklahoma wishes to use, Kagan suggests, present the same problem because they make the inmate feel as if they are burning alive from the inside.
The Court’s conservatives, however, quickly reveal that they think this case is about something else entirely — something that has little to do with whether someone convicted of a terrible crime feels excruciating pain before they die. This case, Alito insists, is part of a “guerrilla war against the death penalty” — that is, an attempt to prevent executions by ruling out the methods states wish to use to perform them. Justice Scalia agrees, insisting that the only reason why other, more reliable painkillers are not available to executioners is because the “abolitionist movement” has made them unavailable.
As a factual matter, Scalia has a point, although it is not at all clear why this fact is relevant as a legal matter. The nationwide shortage of execution drugs came about in large part because the drug manufacturers themselves refuse to sell their products to be used to kill another human being, and because foreign governments have imposed strict restrictions on the export of certain drugs that can be used in executions. By laying the actions of these private companies and foreign officials at the feet of anti-death penalty advocates generally, Scalia and Alito seem to be suggesting that inmates should be subjected to unconstitutionally painful executions if parties that are not before the Court have rendered lawful executions impossible.
Both Scalia and Alito are staunch supporters of the death penalty, so their anger at the incremental successes of their ideological opponents isn’t particularly surprising. In the most ominous sign for the inmates in this case, however, Justice Anthony Kennedy — the Court’s swing vote on death penalty issues — also appeared moved by Scalia and Alito’s concerns. When Konrad tries to change the topic away from these concerns, a visibly annoyed Kennedy forces her back onto the topic, demanding that she answer what relevance the unavailability of other drugs has for this case. Eventually, she responds somewhat sheepishly that these successes are not relevant.
Chief Justice Roberts then leaps into the fray, asking Konrad to suggest an alternative way of killing her clients that would not violate the Constitution. At one point, after Konrad notes that Oklahoma recently passed a law that could lead to her clients being asphyxiated by nitrogen gas, Roberts asks her if she has “an instinct as to whether the gas chamber is preferable” to lethal injection involving midazolam.
To justices like Kagan, in other words, the principal issue in this case is whether Oklahoma’s death row is complying with the Constitution, and the question of whether the combination of a constitutional prohibition and facts outside of the Court’s control may prevent that state from executing people is irrelevant. If it is uncertain whether Oklahoma has met its constitutional obligations, Kagan’s framework suggests that they should not be allowed to execute anyone until this uncertainty is addressed.
To Roberts, Scalia, Alito and possibly Kennedy, however, the most salient issue is that three inmates were sentenced to die, and this sentence should not be thwarted because opponents of the death penalty are both widespread and clever. And if the Constitution rules out all of the lethal methods still available to the state of Oklahoma, then it too must bend to allow the state to carry out its sentence.