Monday, June 29, 2015

Glossip Gossip

Supreme Court Allows Execution Drug in 5-4 Case:

The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

Justice Samuel A. Alito Jr. wrote the majority opinion in the 5-to-4 decision. He was joined by the court’s four more conservative justices.

The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other, severely painful drugs.

Four condemned inmates in Oklahoma challenged the use of the drug, saying it did not reliably render the person unconscious and so violated the Eighth Amendment’s ban on cruel and unusual punishment. Lower courts disagreed.

The new case, Glossip v. Gross, No.14-7955, originally included a fourth inmate, Charles F. Warner. But he was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote.
LOL. Well there's one way to cut down on the number of petitioners.

If you read Alito's opinion, it's pretty narrow and applies pretty much only to Oklahoma and only to this one particular narcotic. But it was on the larger issue, of whether the clock has run on the death penalty itself, that the justices squared up and came out fighting.

Alito's opinion begins the fight with an outright false premise: "Because capital punishment is constitutional, there must be a constitutional means of carrying it out."

There's nothing in the constitution whatsoever that addresses capital punishment in any form, fashion or words. They note that it was "acceptable" at the time of the Framers, etc. but the document itself is completely silent on it.

Later, Scalia hilariously acknowledges this but argues the Constitution "contemplates capital punishment" (which sounds awfully like a "living breathing document" doesn't it? I'm not aware of any inanimate objects that "contemplate" things.) That's because, of course, it does no such thing.

He and Thomas go off in concurrences with other various other straw men, lurid details of murdered infants, and completely ignore the issue of exoneration, which Breyer lays out in precise detail in his call for the eradication of the death penalty itself.

Apparently things got so heated, all the concurrences and dissents were read aloud from the bench this morning, something I'm pretty sure has never happened before. It shows the general vitriol over the issue that plagues the court.

Sotomayor's dissent was a brutal vivisection of the court's opinion, especially as she accuses the five conservatives of being down with torture.
“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive. But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”
It's disappointing Kennedy didn't join the others, but Breyer's concurring dissent was a tour de force argument for abolishing capital punishment, and a helluva read. Filled with facts, figures, studies, data, the Trop decision (which sends Scalia into spasms: "that case has caused more mischief to our jurisprudence, to our federal system, and to our society than any other that comes to mind") and so on, there are more justices willing to toss the system of death onto the ash heap of history and be done with it than maybe we've had before.

Breyer also subtly writes to Kennedy regarding death row and solitary confinement as another possible venue to revisit the constitutionality of capital punishment.

As I've noted here dozens of times over the years, the system of capital punishment is quite literally gasping its last breaths these days. But though the indefensible is become increasingly indefensible, you have to grant the pro-dp side a victory nonetheless.

I'll borrow from Roberts in the Obergefell decision last week: celebrate executions resuming in Oklahoma, even celebrate the chance to exact a few more pounds of flesh and bone in joy and retribution. But do not celebrate the Constitution. It had nothing to do with it.

The case is Glossip v. Gross, et al (2015)


Anonymous said...

Your statement of fact ("There's nothing in the constitution whatsoever that addresses capital punishment in any form, fashion or words. ... the document itself is completely silent on it") is flat out wrong. The 5th Amendment addresses the rights of persons charged in “capital crimes”: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger ..." A "capital offense" is one which is punishable by death -- that phrase has been in legal use since the Middle Ages and the Framers knew exactly what it meant (for example, the First Congress in 1790 enacted the death penalty for treason, counterfeiting, wilfull murder, and aiding the escape of a death row prisoner, as well as piracy, murder, and robbery on the high seas).

Regardless of whether one supports or opposes the death penalty, it's always wise to back up your argument with accurate facts.



Todd Krohn said...

I agree it's always wise to back up arguments with facts, which is why your statement "A 'capital offense' is one which is punishable by death" is assumptive. A "capital offense" can result in punishments less than death as well.

Crimes and punishments are completely separate issues. In fact the 5th amendment has nothing to do with punishment, but addresses criminal procedure and due process. To suggest by mentioning the word "capital" the Constitution speaks to "capital punishment" is completely interpretive (as well as the statement "the Framers knew exactly what it meant").

The Framers knew a lot of things, depending on your perspective.