And Also: The Supreme Court handed down another stray order though SCOTUSBlog and (to my knowledge) the usual Twitter legal journalist suspects did not flag it. Using the docket number, a person can do a docket search to find out more about the litigation. The Court generally doesn't explain why it ruled as it does in these orders or those that are handed down as a group on "order days." The order page has a brief summary of policy and the docket page link is provided but a bit more clarity (such as specifically noting what that number is) would be helpful.
(this and the below was edited since first published)
I briefly referenced the method of execution case handed down earlier this week that received a lot of attention (Bucklew v. Precythe), providing some more comments when it was referenced elsewhere. See also, here. Last time, I provided two links suggesting the strong responses it brought, including basically concluding the Supreme Court accepted "torture." Some criticisms also in various cases closely examined the arguments though came to the same basic conclusion. A closer look is helpful.
A basic conclusion of mine is that it is best not to look at this case purely on face value. It also has had a long build-up, not merely decades worth of death penalty litigation in general. Such litigation over the years came at the death penalty from a variety of angles (racism, due process, innocence, categories of exceptions such as minors etc.). One angle, which in some fashion gets to the core of the Eighth Amendment, is method of execution arguments. In effect, the method itself (electrocution, hanging etc.) was particularly cruel and unusual. And, in each case, there continuously was a belief that the real target was the death penalty itself, not merely it being taken too far.
A problem here is the Supreme Court itself never struck down an execution method as such to my knowledge, the cited forbidden cases like crucifixion never tried. Eighth Amendment claims did over the years successfully put some limits on treatment of prisoners, underlining that there are limits to what you can do. Also, I think they didn't go far enough limiting the types of punishments here, especially in respect to schoolchildren. As referenced in some of the cases cited in Baze (see below), various justices over the years have made good cases that various methods are unconstitutional, including gas, electrocution and hanging. The Nebraska Supreme Court deemed under its state constitution that electrocution was invalid.
The fact something is constitutional in general does not necessary mean cases could not be found it problematic as applied. It left open means to make such claims regarding lethal injection at least as far back as about fifteen years ago, then in a case involving an inmate whose condition made it harder to safely use the procedure in place. Such in a fashion is the argument here too. Note that the litigation strategy required not alleging that no method was possible. (During oral argument in this case, Sotomayor in fact suggested this might be a possible constitutional bar in some case.) They assured the justices that there was a different (constitutional) method for the state to use.
This is important since some of the responses in the latest case was appalled at the idea that the Court demanded the inmate explain a way to kill them. But, none of these cases involve defendants who actually lack such a means. At least, so they claim. The Supreme Court, e.g., directly dealt with a lethal injection method ("protocol") used in Baze v. Rees (2008) with Obama's eventual solicitor general (Donald Verrilli) arguing for the inmates. The state used three drugs (one to knock you out, one to paralyze and one to kill ya) and certain safeguards are in place make sure the anesthesia agent really is working or the execution drug could cause a lot of suffering. One problem here being that the paralyzing agent (largely in place for cosmetic reasons) would prevent determining if the inmate was actually feeling a horrible amount of pain. Some states use one or two drugs.
One strawman offered by some in these cases (cited by Gorsuch in the latest one) is readily admitted as such. As Roberts for the controlling plurality noted:
Justice Stevens flagged that he questioned the constitutionality of the death penalty, but concurred in judgment since that question was not at issue. Glossip v. Gloss (2015) suggested passions only heightened as time passed, including as states found it harder and harder to obtain execution drugs as European countries banned their use. States used suspect means such as compound pharmacies and opposed opening sources, which was flagged especially as multiple botched executions occurred. This not only might have breached federal law (e.g., not meeting rules regarding importation of drugs), it also raised both a due process (how could you ensure that with a sort of black box?) and First Amendment problems. But, those who support execution also were angry, thinking abolitionists were blocking a perfectly constitutional method of criminal justice.
This came out in the that case, especially from Justices Alito and Scalia, and Justice Kennedy (who in various death penalty cases provided a fifth vote for liberal decisions) went along silently, leading one to think that this was also a bridge too far for him (he did support a stay in the most recent case). In the new Roberts bio, it is suggested that he uses Alito for certain red meat cases and he wrote the majority here for five justices. Again, the basic argument was that defendants did not have a case on their allegation that the drug used (because of shortages) truly threatened a "substantial risk of severe pain." Justice Sotomayor strongly dissented on that point. Breyer and Ginsburg added a more open-ended brief against the death penalty.
The opinion also explains how the new method was used because of shortages in significant result of opposition of the death penalty. But, it is not like the inmates themselves did this. There still must be some core limit to what method is used. The opinion, however, flagged an independent concern here (again on the theory the death penalty is constitutional, so there must be a way to do it): "the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims." Sotomayor also strongly went at the argument. The majority tacked on this:
[Sotomayor also noted that there is some evidence that -- though it has barbaric aspects -- even the firing squad might be welcomed by certain inmates over lethal injection. Kavanaugh cited this in his concurrence here, much to some people's disdain. How much Sotomayor was saying the firing squad would actually meet Eighth Amendment standards is unclear.]
And, thus we have our current decision, with the conservatives if anything more upset. The belief the defendant here, whose crimes are cited with tabloid relish, is gaming the system is not exactly hidden. Ditto complaints about drawn out and last minute appeals. As noted by Breyer and Sotomayor, not only is it wrong on the facts repeatedly here, the principle leaves a lot to be desired. Breyer does note in a section of his dissent for himself alone that he is concerned about drawn out appeals. But, there is blame to be spread around there, and reducing protections is not the way to go. Like Sotomayor's suggestion in miniature, it just might be that the whole thing is a problem. Or, we can suggest this was a special case; suffice to say the majority was suspicious.*
Again, there is some confusion here regarding some core that the Eighth Amendment bars (if using originalist arguments that some deem to be laying the groundwork for overturning decades of case law) and the need to provide some alternative that works. But, again, a nitrogen gas alternative is offered. The majority argues it is not really "available." And, again, the justices don't think the means used a problem anyway. The opinion is longer than many Robert Court opinions, and it seems if Gorsuch cut off the spleen and extra material to make the ruling stricter than necessary, it could have been much shorter. The extra stuff on some level seems to be the point. Plus (see the links) adds more confusion.
(Kavanaugh, who pushed the state during oral argument if there was simply no case where a lack of alternative would result in an unconstitutional execution, in his separate concurrence seemed to reaffirm the point. This was an "as applied" challenge, so the inmate needed to find an alternative, which could be done with some wide discretion on what is open. There is no conclusion that actual "torture" would be allowed here. The question simply is not pressed. The dissent thinks requiring the inmate here with a special condition to provide an alternative is not necessary, but again, it reaffirms that even if that was required, he met the case. The debate is thus on the details. A strong debate surely, but more focused than the majority.)
The whole thing is shoddy and not a good look for Roberts, who is supposed to care about the Court's image. A narrow ruling that the facts does not warrant holding that lethal injection here, even given the inmate's condition, was not dangerous enough to provide a substantial degree of pain that would violate the Eighth Amendment would have divided them. But, it could have been a more reasonable debate. The conservatives, however, seemed to have wanted bigger game. Let's see how the courts of appeals handle it. Doesn't bode well for the future of the Roberts Court.
---
* Over the years, I have seen even those dubious about the death penalty somewhat suspicious about challenges over lethal injection protocols, but experience and scholarship has shown significant problems do arise. As with the death penalty itself, there truly is a possible middle ground, especially in egregious cases. Procedural due process is one concern, scholarship in part noting that the protocols have been crafted and carried out in a slipshod matter. We also have special cases where the inmate might have a good reason to argue a particular method is problematic.
Sotomayor is right to note that litigation is not illegitimate even when the challenges ultimately might fail. The same applies if the people involved given their druthers might find the whole affair unconstitutional or simply horrible policy. Lethal injection is one more attempt to provide more humane punishments that leave a lot to be desired, including the use of a medicinal approach without physicians (for ethical reasons) to safeguard it.
The overall battle hopefully will get us somewhat closer to a better result, imperfect as that might be. Yes, I personally think the better path is to just not execute people. The inmate here offered nitrogen gas an alternative and that is being put forth as a better alternative generally. Color me as suspicious even if it is used for euthanasia by willing participants. The firing squad is also cited in text though it is probably too "icky" and involvement in the killing a tad too blatant for the general public to accept the practice. It has been used in the past so some limited examination is possible in context as compared to nitrogen gas.
(this and the below was edited since first published)
I briefly referenced the method of execution case handed down earlier this week that received a lot of attention (Bucklew v. Precythe), providing some more comments when it was referenced elsewhere. See also, here. Last time, I provided two links suggesting the strong responses it brought, including basically concluding the Supreme Court accepted "torture." Some criticisms also in various cases closely examined the arguments though came to the same basic conclusion. A closer look is helpful.
A basic conclusion of mine is that it is best not to look at this case purely on face value. It also has had a long build-up, not merely decades worth of death penalty litigation in general. Such litigation over the years came at the death penalty from a variety of angles (racism, due process, innocence, categories of exceptions such as minors etc.). One angle, which in some fashion gets to the core of the Eighth Amendment, is method of execution arguments. In effect, the method itself (electrocution, hanging etc.) was particularly cruel and unusual. And, in each case, there continuously was a belief that the real target was the death penalty itself, not merely it being taken too far.
A problem here is the Supreme Court itself never struck down an execution method as such to my knowledge, the cited forbidden cases like crucifixion never tried. Eighth Amendment claims did over the years successfully put some limits on treatment of prisoners, underlining that there are limits to what you can do. Also, I think they didn't go far enough limiting the types of punishments here, especially in respect to schoolchildren. As referenced in some of the cases cited in Baze (see below), various justices over the years have made good cases that various methods are unconstitutional, including gas, electrocution and hanging. The Nebraska Supreme Court deemed under its state constitution that electrocution was invalid.
The fact something is constitutional in general does not necessary mean cases could not be found it problematic as applied. It left open means to make such claims regarding lethal injection at least as far back as about fifteen years ago, then in a case involving an inmate whose condition made it harder to safely use the procedure in place. Such in a fashion is the argument here too. Note that the litigation strategy required not alleging that no method was possible. (During oral argument in this case, Sotomayor in fact suggested this might be a possible constitutional bar in some case.) They assured the justices that there was a different (constitutional) method for the state to use.
This is important since some of the responses in the latest case was appalled at the idea that the Court demanded the inmate explain a way to kill them. But, none of these cases involve defendants who actually lack such a means. At least, so they claim. The Supreme Court, e.g., directly dealt with a lethal injection method ("protocol") used in Baze v. Rees (2008) with Obama's eventual solicitor general (Donald Verrilli) arguing for the inmates. The state used three drugs (one to knock you out, one to paralyze and one to kill ya) and certain safeguards are in place make sure the anesthesia agent really is working or the execution drug could cause a lot of suffering. One problem here being that the paralyzing agent (largely in place for cosmetic reasons) would prevent determining if the inmate was actually feeling a horrible amount of pain. Some states use one or two drugs.
One strawman offered by some in these cases (cited by Gorsuch in the latest one) is readily admitted as such. As Roberts for the controlling plurality noted:
Some risk of pain is inherent in any method of execution—no matter how humane—if only from the prospect of error in following the required procedure. It is clear, then, that the Constitution does not demand the avoidance of all risk of pain in carrying out executions.The controlling plurality (Breyer and Stevens concurred on separate grounds, Souter/RBG dissented: Scalia/Thomas has a stricter test):
Petitioners do not claim that it does. Rather, they contend that the Eighth Amendment prohibits procedures that create an “unnecessary risk” of pain.
Instead, the proffered alternatives must effectively address a “substantial risk of serious harm.” Farmer, supra, at 842. To qualify, the alternative procedure must be feasible, readily implemented, and in fact significantly reduce a substantial risk of severe pain.The opinion ends with an argument that history showed entrusting legislatures with discretion led to a steady increase of more humane punishments. Sort of a have your cake and eat it too. The opinion also argued that since the death penalty was deemed constitutional that it "necessarily follows that there must be a means of carrying it out." But, that doesn't mean any method could be used. Unless it is no longer "safe to affirm that punishments of torture, . . . and all others in the same line of unnecessary cruelty, are forbidden." The justices did not think the method challenged in that case violated that rule.
Justice Stevens flagged that he questioned the constitutionality of the death penalty, but concurred in judgment since that question was not at issue. Glossip v. Gloss (2015) suggested passions only heightened as time passed, including as states found it harder and harder to obtain execution drugs as European countries banned their use. States used suspect means such as compound pharmacies and opposed opening sources, which was flagged especially as multiple botched executions occurred. This not only might have breached federal law (e.g., not meeting rules regarding importation of drugs), it also raised both a due process (how could you ensure that with a sort of black box?) and First Amendment problems. But, those who support execution also were angry, thinking abolitionists were blocking a perfectly constitutional method of criminal justice.
This came out in the that case, especially from Justices Alito and Scalia, and Justice Kennedy (who in various death penalty cases provided a fifth vote for liberal decisions) went along silently, leading one to think that this was also a bridge too far for him (he did support a stay in the most recent case). In the new Roberts bio, it is suggested that he uses Alito for certain red meat cases and he wrote the majority here for five justices. Again, the basic argument was that defendants did not have a case on their allegation that the drug used (because of shortages) truly threatened a "substantial risk of severe pain." Justice Sotomayor strongly dissented on that point. Breyer and Ginsburg added a more open-ended brief against the death penalty.
The opinion also explains how the new method was used because of shortages in significant result of opposition of the death penalty. But, it is not like the inmates themselves did this. There still must be some core limit to what method is used. The opinion, however, flagged an independent concern here (again on the theory the death penalty is constitutional, so there must be a way to do it): "the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims." Sotomayor also strongly went at the argument. The majority tacked on this:
As Sotomayor argued, somewhat ironically in part by reference to the most conservative justices' concurrence, the earlier opinion did not compel a conclusion that left open a cruel punishment if there was no other alternative. (Imagine an isolated island where only a rusty knife or stones are available to execute someone.) The inmates there offered an alternative (though it was deemed inadequate). Punishment itself is constitutional, but minimum requirements of humane prisons would not disappear because of severe budget shortfalls. Anyway, that final kicker implies that the justices basically didn't think the protocol here really was cruel. The whole thing just to me is open to unnecessary confusion.Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” Post, at 28. That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.
[Sotomayor also noted that there is some evidence that -- though it has barbaric aspects -- even the firing squad might be welcomed by certain inmates over lethal injection. Kavanaugh cited this in his concurrence here, much to some people's disdain. How much Sotomayor was saying the firing squad would actually meet Eighth Amendment standards is unclear.]
And, thus we have our current decision, with the conservatives if anything more upset. The belief the defendant here, whose crimes are cited with tabloid relish, is gaming the system is not exactly hidden. Ditto complaints about drawn out and last minute appeals. As noted by Breyer and Sotomayor, not only is it wrong on the facts repeatedly here, the principle leaves a lot to be desired. Breyer does note in a section of his dissent for himself alone that he is concerned about drawn out appeals. But, there is blame to be spread around there, and reducing protections is not the way to go. Like Sotomayor's suggestion in miniature, it just might be that the whole thing is a problem. Or, we can suggest this was a special case; suffice to say the majority was suspicious.*
Again, there is some confusion here regarding some core that the Eighth Amendment bars (if using originalist arguments that some deem to be laying the groundwork for overturning decades of case law) and the need to provide some alternative that works. But, again, a nitrogen gas alternative is offered. The majority argues it is not really "available." And, again, the justices don't think the means used a problem anyway. The opinion is longer than many Robert Court opinions, and it seems if Gorsuch cut off the spleen and extra material to make the ruling stricter than necessary, it could have been much shorter. The extra stuff on some level seems to be the point. Plus (see the links) adds more confusion.
(Kavanaugh, who pushed the state during oral argument if there was simply no case where a lack of alternative would result in an unconstitutional execution, in his separate concurrence seemed to reaffirm the point. This was an "as applied" challenge, so the inmate needed to find an alternative, which could be done with some wide discretion on what is open. There is no conclusion that actual "torture" would be allowed here. The question simply is not pressed. The dissent thinks requiring the inmate here with a special condition to provide an alternative is not necessary, but again, it reaffirms that even if that was required, he met the case. The debate is thus on the details. A strong debate surely, but more focused than the majority.)
The whole thing is shoddy and not a good look for Roberts, who is supposed to care about the Court's image. A narrow ruling that the facts does not warrant holding that lethal injection here, even given the inmate's condition, was not dangerous enough to provide a substantial degree of pain that would violate the Eighth Amendment would have divided them. But, it could have been a more reasonable debate. The conservatives, however, seemed to have wanted bigger game. Let's see how the courts of appeals handle it. Doesn't bode well for the future of the Roberts Court.
---
* Over the years, I have seen even those dubious about the death penalty somewhat suspicious about challenges over lethal injection protocols, but experience and scholarship has shown significant problems do arise. As with the death penalty itself, there truly is a possible middle ground, especially in egregious cases. Procedural due process is one concern, scholarship in part noting that the protocols have been crafted and carried out in a slipshod matter. We also have special cases where the inmate might have a good reason to argue a particular method is problematic.
Sotomayor is right to note that litigation is not illegitimate even when the challenges ultimately might fail. The same applies if the people involved given their druthers might find the whole affair unconstitutional or simply horrible policy. Lethal injection is one more attempt to provide more humane punishments that leave a lot to be desired, including the use of a medicinal approach without physicians (for ethical reasons) to safeguard it.
The overall battle hopefully will get us somewhat closer to a better result, imperfect as that might be. Yes, I personally think the better path is to just not execute people. The inmate here offered nitrogen gas an alternative and that is being put forth as a better alternative generally. Color me as suspicious even if it is used for euthanasia by willing participants. The firing squad is also cited in text though it is probably too "icky" and involvement in the killing a tad too blatant for the general public to accept the practice. It has been used in the past so some limited examination is possible in context as compared to nitrogen gas.
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