SCOTUS Watch
Glossip v. Gross, Docket No. 14-7955,
on Appeal from the
Tenth Circuit
Introduction
“From this day
forward, I shall no longer tinker with the machinery of death. For more than twenty years I have
endeavored—indeed. I have
struggled—along with a majority of this Court, to develop procedural and
substantive rules that would lend more than the mere appearance of fairness to
the death penalty endeavor. Rather than
continue to coddle the Court’s delusion that the desired level of fairness has
been achieved and the need for regulation is eviscerated, I feel morally and
intellectually obligated simply to concede that the death penalty experiment
has failed.”
In the current term of the United States
Supreme Court, the Justices are set to decide a case which almost literally
questions the “machinery of death” and the “death penalty experiment.”
Issue
The question the Court is presented in Glossip
involves whether, (1) under the Eighth Amendment, state can continue to carry
out lethal injections using a drug formula that they know does not sufficiently
numb an inmate’s pain, after
evidence of this failure has been manifested in prior executions; and (2)
whether an inmate invoking the Eighth Amendment must
identify an alternative method of execution in order to avoid an execution
method. These issues should be of
particular relevance to practitioners, especially those involved in capital
defense, capital prosecution, habeas corpus, post-conviction representation,
and criminal appellate practice. Glossip
provides the Court an opportunity to fundamentally change the operation of the
death penalty in all of the United States, especially in states that are
struggling to deal with drug shortage.
Facts
The case of Glossip v. Gross primarily
arises out of a major
shortage of drugs used in lethal injection “cocktails.” European pharmaceutical companies have
cancelled further sales to American states because they do not want their
products used in executions, leaving
states to try new manners of mixing lethal injection drugs or seek creative
ways of finding the drug, such as underground markets. Glossip reached the Court after
Oklahoma executed Clayton Lockett using a new drug formula experiment. The formula failed, as Lockett’s execution
last for forty-three minutes and was characterized with loud moans and visible
struggling. Lockett
had previously applied for a stay of execution, invoking the Eighth
Amendment prohibition on cruel and unusual punishment. Prior to Lockett’s execution, the
Court had denied a challenge by another Oklahoma inmate, Charles Warner,
who ultimately also experienced a long and visibly painful execution. The Court declined to stay the execution on
the grounds that they
did not see any feasible alternatives to the lethal injection formula. However, the Justices decided to hear the
case of Glossip and three other inmates on Oklahoma’s death row inmates who
sued after Lockett’s botched execution.
The inmates sue on the basis that Oklahoma is in violation of the Eighth
Amendment because they are prepared to carry out the executions despite
the previous failure of their cocktail to painlessly execute Lockett.
Arguments
There is not a particular wealth of
Supreme Court case precedent to address the shortage of death penalty
drugs. The last case that the Court
addressed on the subject was the 2008 case of Baze v. Rees,
in which a plurality Court rejected a prisoner’s Eighth Amendment claim
regarding newer drug cocktails. However,
the Court left open the possibility that should
a death penalty procedure be sure to incite pain and suffering or threaten pain
and suffering, it could fail the “cruel and unusual punishment standard.” The Court held that if an inmate can show severe
likelihood of imminent pain, the Eighth Amendment can block the execution.
The second issue in the case involves whether an
inmate must identify a different method of execution in order to succeed in
an Eighth Amendment claim. Baze
does not offer much guidance on this particular matter, as it was not addressed
by the Court. Further Baze held
that showing
an alternative execution method was not sufficient basis for inmates to show an
Eighth Amendment challenge. The
Court heard a similar question in their denial of a stay to Warner, the
case immediately preceding Glossip.
The Court held that an inmate must identify a feasible alternative. The Court seems
poised to reassess that issue in the Glossip case, particularly given
the fact that there is evidence of physical pain that may fit the Baze
standard.
Petitioner’s Argument
Glossip and the other petitioners are
hoping that the prior executions, in which
there was visible pain and suffering by the inmate, will satisfy the Baze
standard and stay their executions.
Glossip’s case also hinges on whether the Court will view lower courts’
holdings favorably. In Cooey v.
Kasich,[1]the
federal district court held that Ohio’s new drug experimentation violated the
Eighth Amendment, as evidence showed the drug combination would likely cause
severe pain. Similarly, in Arthur v. Thomas,
the Eleventh Circuit reversed a lower court’s decision to proceed with an
execution under a new drug formula primarily on the grounds that using new
formulas subjected inmates to a severe risk of pain thus could not be valid
under the Eighth Amendment.
On the second issue, Glossip will particularly argue that the Warner case was wrongly decided in
the light of the new factual record. They
will primarily assert that an inmate’s rights under the Eighth Amendment should
not be subject to their ability to identify other methods of execution. There
is little precedential basis to determine how the Court will further
proceed. Cooey may also provide
Glossip further basis, as the court held that a state cannot use a cruel and
unusual drug cocktail in lethal injections for the sake of convenience or
efficiency.[2] Glossip can also find some support for this
argument among some of the justices, as Justice Sotomayor wrote a harsh dissent in
the Warner case, stating “It would be odd if
the constitutionality of being burned alive, for example, turned on a
challenger’s ability to point to an available guillotine.”[3]
Respondents’ Argument
Oklahoma’s
arguments in the case will be more centered on precedents that have upheld the
death penalty as constitutionally valid under the Eighth Amendment. The Court affirmed as much is Baze,
while also holding that states are
allowed to experiment and seek new methods of drugs. The Court also held that it is permissible
for an execution to involve pain to an inmate, so long as the pain is such that
is inevitable from an execution. The
states can also assert that the evidence that the inmates’ execution is not
pervasive enough to constitute an “objectively
intolerable risk of harm” that qualifies as cruel and unusual. Further, the respondent will rely on the 5-4
majority decision in the Warner case that inmates challenging an execution
method must indicate an alternative method.
The petitioners have not identified an alternative method in their
filings. Oklahoma is hoping that the
previous 5-4 majority will still hold in the Glossip case.
Practitioners
The Court’s decision in Glossip v. Gross
has the potential to alter the current “machinery of death” and the future of
capital punishment. The outcome is also
fairly difficult to predict, as the Justices have a different factual
distinction between Baze and the preceding cases. However, based on the Baze opinions,
it would be reasonable to expect Ginsburg, Breyer, Sotomayor, and Kagan to side
with Glossip. Roberts wrote the
plurality opinion of Baze, in which Alito and Kennedy joined. Alito wrote a separate opinion asserting that
claims similar to Baze would be fact-specific and case-by-case, in which
Kennedy, Scalia, and Thomas joined.
Therefore, it is unclear how the Court will decide, but it is likely
that the Court will avoid a broad ruling staying executions on a broad level
similar to the Court’s landmark decision of Furman v. Georgia,
particularly since the conservative block of the justices do have a preference
to defer to states on matters of the death penalty. Regardless, the Court’s decision will have
various and substantial impacts on states’ implementation of the death penalty
that will be relevant as long as the drug shortage continues to be
pervasive.
Braxton Marcela
Staffer, Criminal Law Practitioner
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