Supreme Court Rejects Challenge To Death Penalty

The Supreme Court rejected a challenge to the way the death penalty is administered, dealing a serious blow to opponents of the death penalty.

Death Chamber

In a decision that is likely to make challenging death sentences more difficult for the foreseeable future, the Supreme Court rejected a claim by a group of inmates on Oklahoma’s death row that one of the drugs that state uses in its execution has an effect that violates the Eighth Amendment:

WASHINGTON — 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.

In the process, two dissenting members of the court — Justices Stephen G. Breyer and Ruth Bader Ginsburg — came very close to announcing that they were ready to rule the death penalty unconstitutional. This gave rise to slashing debate with Justices Antonin Scalia and Clarence Thomas about the reliability and effectiveness of the punishment, a dispute that overshadowed the core issue in the case.

The 5-to-4 decision on the execution drug broke along familiar lines, with Justice Anthony M. Kennedy joining the court’s more conservative members to allow its use.

Justice Samuel A. Alito Jr., writing for the majority, said the inmates had failed to identify an available and preferable method of execution and also failed to make the case that the challenged drug entailed a substantial risk of severe pain.

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 drugs that cause severe pain.

In dissent, Justice Sonia Sotomayor, who joined the other three members of the court’s liberal wing, said, “The court’s available-alternative requirement leads to patently absurd consequences.”

“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive,” Justice Sotomayor wrote. “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.”

Justices Breyer, Ginsburg and Elena Kagan joined Justice Sotomayor’s dissent.

In a second, more sweeping dissent, Justice Breyer, joined by Justice Ginsburg, said it was time to consider a larger issue.

“Rather than try to patch up the death penalty’s legal wounds one at a time,” Justice Breyer wrote, “I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”

In a 46-page dissent that included charts and maps, he said “it is highly likely that the death penalty violates the Eighth Amendment,” which bars cruel and unusual punishments. He said there was evidence that innocent people have been executed, that death row exonerations were frequent, that death sentences were imposed arbitrarily and that the capital justice system was warped by racial discrimination and politics.

Justice Breyer added that there was scant reason to think that the death penalty deterred crime and that long delays between death sentences and executions might themselves violate the Eighth Amendment. He noted that most of the country did not use the death penalty and that the United States was an international outlier in embracing it.

Justice Scalia responded to what he called “Justice Breyer’s plea for judicial abolition of the death penalty” by calling it “gobbledy gook.” The punishment is contemplated by the Constitution, Justice Scalia said, and disingenuously opposed on grounds created by its opponents.

Criticizing the death penalty on the ground that it is not implemented fast enough, for instance, Justice Scalia said, “calls to mind the man sentenced to death for killing his parents, who pleads for mercy on the ground that he is an orphan.”

“We federal judges,” Justice Scalia continued, “live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat-cake obliviousness to the needs of others. Let the people decide how much incremental deterrence is appropriate.”


Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.

In April 2014, Clayton D. Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.

The Supreme Court last considered lethal injections in 2008, in Baze v. Rees, when it held that what was then the standard three-drug combination, using the barbiturate sodium thiopental as the first agent, did not violate the Eighth Amendment.

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.

A little more than a week later, the court agreed to hear the remaining inmates’ appeals, and a few days after that it stayed their executions.

Amy Howe examines the Court’s ruling:

In a decision by Justice Samuel Alito that was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Antonin Scalia, and Clarence Thomas, the Court began with a look backward, at the history of the death penalty in the United States.  It emphasizes that, although states may at times have used different methods to execute inmates as part of an effort to find “a more humane way to carry out death sentences,” the Supreme Court has never ruled that any particular method of execution violates the Eighth Amendment’s prohibition on cruel and unusual punishment.  The Court then declines to do so today, for two reasons.

First, the Court explains, the inmates can win only if they can show that the state has a better option than midazolam – which they have failed to do.  Although the inmates had suggested that the state could use two other drugs (which had in the past been used in lethal injections), the state is no longer able to buy those drugs for use in executions.

Second, the inmates have not shown that the use of midazolam in lethal injections is “sure or very likely to result in needless suffering” by the inmate:  several lower courts have concluded that the use of midazolam will render an inmate unconscious so that he won’t feel pain from the second and third drugs, and in any event federal judges are not scientists and should stay out of disputes that they lack the expertise to resolve.  Moreover, the Court observes, although it is true that there were problems in two executions using midazolam, there have been twelve other executions using midazolam that did appear to go as planned.

Justice Sonia Sotomayor wrote the main dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, and read a summary of her dissent from the bench – a relatively rare step reflecting the extent of her disagreement with the majority.  In it, she disputes both the factual and legal foundations for the Court’s ruling today.  Among other things, she notes, even if there is evidence suggesting that midazolam will render the inmate unconscious, the problem is that there is also evidence indicating that it cannot keep him unconscious after the other two drugs are administered and result in searing pain.  And, she adds, the Court is just wrong when it puts the burden on the inmates to show that there is a better alternative than midazolam, because nothing in its cases imposes such a requirement.  The net result of the Court’s opinion, she contends, is to leave the inmates “exposed to what may well be the chemical equivalent of being burned at the stake.”

The Sotomayor dissent may have garnered more support than the one filed today by Justice Breyer, but the Breyer dissent – which Justice Ginsburg also joined – is likely to garner the lion’s share of attention.  Like Sotomayor, Breyer read his dissent from the bench; it’s pretty unusual for a second Justice to dissent from the bench, but it demonstrates how sharp the Justices’ differences are on this question and how he feels about the issue.  And he takes the remarkable step – reminiscent of the late Justice Harry Blackmun’s 1994 statement that he would “no longer . . . tinker with the machinery of death” – of suggesting that the death penalty itself is unconstitutional.

Before getting to the merits of the this case, it’s necessary I think to address the issue that Justices Ginsburg and Breyer raise in their Dissent, which is one that hasn’t really been directly addressed in Supreme Court death penalty decisions for quite some time now. They argue that the death penalty is inherently unconstitutional, that there are no circumstances under which it can be applied in accordance with the protections of the Bill of Rights, and that the Court ought to return to the days of Furman v. Georgia in 1972, where a divided essentially made the death penalty unconstitutional nationwide. That ruling, though, was based upon the manner in which the sentence was being applied across the country so that, after many states acted to change their death penalty laws to meet the objections of the majority,, the Court returned in 1976 in Gregg v, Georgia to find that the revised death penalty laws met Constitutional muster Since then, the Court has handled a steady stream of death penalty litigation and requests for stays from inmates about to be executed but it has never even come close to doing what the Court did in 1972. Indeed, the fact that only two of the Court’s four liberal members joined in the dissent that argued that the death penalty was unconstitutional demonstrates just how much things have changed since 1972 and how much of an outlier Fuhrman actually was.

In this case, it is obvious that Justices Breyer and Ginsburg are incorrect and that Justice Scalia has the better argument here. There is simply no support for the idea that the death penalty is per se unconstitutional. Perhaps the best proof of that is in the language of the Constitution itself, which provides in both the Fifth and Fourteenth Amendments that a person cannot be deprived of “lifeliberty, or property” without due process of law. By it’s very language, the Constitution contemplates the idea that capital punishment can be an acceptable sentence in some circumstances. The question then becomes what due process is, and specifically whether the rights protected by the 4th, 6th, and 7th Amendments are being adequately protected. That, however, is something that can only be decided on case by case basis, not something that is inherent to a proceeding involving the death penalty by its nature. As I have said here many times, I oppose the death penalty as policy and I believe it should be repealed. At the same time time, though, the argument that Breyer and Ginsburg make in their Dissent simply has no basis in the law and reads more like a policy paper addressed to a legislator. The death penalty should be brought to an end, but not through the employment of legal arguments that have no merit.

As to the merits of this case, it’s long been clear that many of the Justices have grown weary of the endless appeals regarding the lethal injection drug cocktail over the past several years. In nearly all cases, those appeals, and the related requests for a stay of execution, have been denied and the execution allowed to go forward. When the Court accepted the appeal of these three inmates, many observers believed that at least part of the motivation for some of the Justices to agree to hear the case was to establish some bright line rule that would make these appeals more difficult to pursue and thus less common. This seems to be especially true in the case of inmates who have pursued repeated appeals to the the Supreme Court related to their case and now seem to have latched on to the issue of the method of execution as the next ground that might just succeed. Given the extent to which the majority opinion here seems to shut down many of the arguments that death penalty opponents were making regarding the drug cocktail, that appears to have been a very good guess.

Ian Millhiser at Think Progress accurately describes the outcome today as crushing blow to death penalty opponents:

They key paragraph in Alito’s opinion is a declaration that, no matter what happens, there must always be a way to execute inmates:

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.

Ordinarily, lawsuits claiming that a particular method of punishment is unconstitutionally cruel and unusual limit their focus to a narrow question — whether the specific method used by the state is cruel and unusual or not. With this one paragraph, Alito turns that analysis on its head. Now, there must always be a method of execution available to the state. And if the only method available inflicts cruel and unusual amounts of pain on an inmate, that’s not the Court’s problem.

As a final blow to anti-death penalty advocates, Alito effectively drafts them into the task of determining how their clients should be killed. Alito reaches his conclusion, at least in part, “based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution.” In other words, a lawyer challenging a particular method of execution must name another, alternative method that can be used instead. Needless to say, this places attorneys who have an obligation to represent the interests of their client in a serious ethical bind.

Even though I oppose the death penalty as policy, on some level I can see why the Court ruled the way that it did. Essentially, what these Defendants were asking the Court to do was open a door into a world where Judges would most likely have ended up micromanaging the methods by which states that do have the death penalty can carry it out to the point of deciding on the merits of particular drugs without having any knowledge as to whether or not any other drugs would be a better alternative. That’s now what courts are supposed to be doing in cases such as this. On some level, yes, Judges do have to make determinations about execution methods to ensure that the Eighth Amendment is not being violated, but that doesn’t mean that they ought to be but into a role that belongs to a legislator or administrator. The rule that Alito’s opinion establishes will cut down on lawsuits like this, of course, but that doesn’t mean that all avenues of appeal are cut off from Death Row inmates. The avenues of appeal available to them are thorough and lengthy, and that isn’t going to change. What the opinion means, though, is that lawsuits based on speculative claims about execution drugs cannot be sustained.

As I said, the death penalty ought to be eliminated, but endless lawsuits isn’t the way to do it any more than adopting the extra-Constitutional reasoning of Justices Breyey and Ginsburg. The way to do it is to change hearts and minds as happened last month in Nebraska. There’s already plenty of evidence of that public opinion on the death penalty is changing, so the opportunity is certainly there.

Here’s the opinion:

Glossip v. Gross by Doug Mataconis

FILED UNDER: Crime, Law and the Courts, US Politics, , , ,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook


  1. SKI says:

    Justice Samuel A. Alito Jr., writing for the majority, said the inmates had failed to identify an available and preferable method of execution…


    That is insane.

    If the State can’t come up with an alternative method that is the State’s problem, not the criminal’s sentenced to death.

    I have no idea how they didn’t stop at “failed to make the case that the challenged drug entailed a substantial risk of severe pain.”

  2. george says:

    Could the sentenced suggest “death by old age?”

  3. OzarkHillbilly says:

    We all owe a death. Why is it considered the ultimate punishment? Makes absolutely no sense to me.

  4. OzarkHillbilly says:

    @george: I like.

  5. Bill says:


    Could the sentenced suggest “death by old age?”

    You wouldn’t be a fan of Abbot and Costello? Costello would answer old age whenever someone asked him how he would like to die.

  6. Lit3Bolt says:

    Do I misunderstand something here, or is Alito simply saying the Eight Amendment cannot be considered at all for state executions? Isn’t that a implicit admission that execution by its very nature violates the Eighth Amendment? (Even setting aside cruelty, one could argue that it is now an unusual punishment because of its relative rarity).

    Also, why should a client be forced to participate in his own death legally? That’s ghoulish. The burden is on the state to prove that the execution follows Constitutional norms, not the client.

    There’s always been a simple method for execution: intravenous analgesics. They have never been considered because for some reason we treat rabid dogs better than rabid people in America.

  7. Lit3Bolt says:


    Because it satisfies the hooting monkey inside everyone’s subconscious?

    Also, very very strange you hear about the sanctity of life in abortion cases, but for some reason never comes up in execution cases…

  8. Ron Beasley says:

    It’s a matter of economics. Although we still have the death penalty on the books in Oregon the prosecutors never ask for it anymore because they can’t afford it.

  9. Tony W says:

    I agree with Doug. While the death penalty is beneath us as a civilized society, as a matter of constitutional law the courts must move cautiously. This is a matter of public policy, not civil rights, and should be addressed by Congress.

  10. Hal_10000 says:

    I agree with a lot of your legal reasoning, Doug, but here’s the thing: we know that the three-drug protocol is a problem. We know that, even if correctly done, it can lead to the executee being conscious and aware and in pain while he suffocates. And we know that trying to change up that chemical mix ad-hoc has resulted in horrifyingly botched executions.

    This isn’t a matter of “micromanagement”. It’s a a matter of basic common sense. If paralyzing someone and making them slowly asphyxiate win excruciating pain isn’t cruel and unusual, what is? Because there is a solid body of evidence that this is precisely what lethal injection does. A firing squad would be more humane. You don’t have to be a scientist to see that something is seriously wrong here.

  11. Franklin says:

    I’m also against the death penalty, on practical grounds, but the majority is mostly right. However, Alito’s statement that the convicted have to provide a better method of execution is completely ludicrous. That’s the state’s job, period.

  12. JohnMcC says:

    @Bill: My favorite answer to that question (how do you prefer to die?) was I think Groucho Marx: Died at the age of 100. Shot by a jealous husband.

  13. Gustopher says:

    @Franklin: Perhaps this is a general rule. The victims of police brutality simply failed to provide the police with a better alternative to a beat down, etc.

  14. de stijl says:


    There’s always been a simple method for execution: intravenous analgesics.

    I agree but would add a bit more specificity: a hippo-sized dose of intravenous opiate or opioid. A few moments of utter bliss followed by complete CNS collapse. The medulla oblongata which has provided a lifetime of yeoman service suddenly takes a permanent vacation. Cardiac function ceases, respiratory function ceases. If there is any pain associated with the cessation of brain function, the super-massive opiate / opioid overdose renders that a non-issue.

    I am completely opposed to the death penalty. It is barbaric. If we continue to put some people to death, however, it should in the most pleasant way possible.

  15. de stijl says:

    @de stijl:

    If we continue to put some people to death, however, it should in the most pleasant way possible.

    Now that I’ve posted this, I think I want to reconsider. The person who is being killed should have a pleasant exit from this life, but the people and the State should have a very, very unpleasant experience in executing the sentence.

    Imagine a scenario where the condemned has not been given a hippo-sized dose, but a goodly-sized human sized dose. He is in a state of bliss, but essentially unaware of his surroundings. His head has been immobilized and a .50 cal rifle, loaded with one cartridge, is pointing directly at the midpoint between his eyes.

    Imagine that state’s Governor, the Lt. Governor, the state’s Attorney General, and the prosecutor have been ushered into the room at 11 pm. These people are not behind a window, but in the room itself. They are not allowed to talk to one another. The room is small, they are grouped in a semi-circle around the condemned; if the rifle were to be triggered, everyone in the room will splattered with blood, skull fragments and brain matter.

    The proceedings would be on camera and the live feed must be made available to whomever wished to broadcast or carry the execution.

    Each man or woman would have a Jeapordy style push-button in their hand. The clock in the room will have an audible click as each second passes and a audible beep, which gets louder and louder, with the passage of every minute. The state’s Supreme Court must attend, but they are non-voting members. They need not stand in the first row – in the splash zone – depending upon their own conscience or wishes, but they must be in the room and they must attend to the proceedings.

    As midnight approaches, the principles will have a ten second countdown window in which to vote Yea or Nay. If the vote is not unanimously Yea, then the sentence is immediately converted to life without parole. If the vote is unanimously Yea then the rifle will be automatically triggered at exactly midnight.

  16. C. Clavin says:

    Some 4% of death row inmates are wrongly convicted. That means another 340 people wrongly put to death.
    Scalia has claimed a 99.973% accuracy rate. As with most things, the Koch Brothers employee is wrong here too.
    Every life is precious? Fvcking Republican hypocrites.

  17. Tyrell says:

    @de stijl: Do these murderers choose a pleasant way for their victims to die ? I have not read much on here about concern for the victims and their families.
    My opinion is that a lot of these murderers should be just let loose in the general population. They will choose an appropriate execution method. And that would save the tax payers some money. Another idea is to put them in a dark cell with some rope. That worked for that Cleveland kidnapper animal.

  18. Tony W says:


    Do these murderers choose a pleasant way for their victims to die ?

    Are you suggesting that we stoop to their levels? Maybe society could have just a slightly higher bar than the behavior of a murderer.

  19. de stijl says:


    Your solution to sadism and murder and depravity, is that the State as a representative of the whole people, should resort to the same means, or to turn its back and allow the sadists to ravage the sadists, the murderers to kill the murderers, or the depraved to annihilate the depraved?

    What about the very real concern that the accused is not actually guilty of the crime of which he has been convicted?

    How many people who have been convicted and sentenced to life without parole or to death have been released from prison in the last ten years? Would you stake your life on the fact that every man who has been executed, or is scheduled to be executed, is actually guilty of the crime for which he has been condemned to death? Would you bet your life on it? Would you bet your soul on it?

    We, the people, at least in several of our states, have decided that we will execute our fellow citizens for the crimes they have been convicted of. That decision is a grave and profound one and must be applied in a thoroughly considered manner.

    Taking a man’s life is a serious business. Taking a man’s life should not be outsourced to employees paid by the hour.

    @Tony W:

    Are you suggesting that we stoop to their levels? Maybe society could have just a slightly higher bar than the behavior of a murderer.

    I believe Nietzsche may have coined a clever little aphorism or two on the subject. Something about the abyss and monsters and gazing into it or becoming one, blah, blah, blah. Pity I can’t remember the words.

  20. gVOR08 says:

    @de stijl: I got myself off a capital murder jury many years ago. By the time they got to me in jury selection I was having a difficulty seeing the difference between what the prosecutors claimed the accused had done and what they were wanting to do to him. Seemed to come down to nice suits and more premeditation.

  21. de stijl says:


    My opinion is that a lot of these murderers should be just let loose in the general population. They will choose an appropriate execution method. And that would save the tax payers some money. Another idea is to put them in a dark cell with some rope. That worked for that Cleveland kidnapper animal.

    Have you considered that this statement could be easily characterized as the thoughts of a moral monster?

    That you might be a fiscally conservative, ultra-utilitarian person, but a moral monster, nevertheless?

    State-sponsored vigilantism, or winkingly endorsed extra-judicial punishment, is not a road we want to go down. Or actually, we should refuse to go any further down that road, and we need to reverse course. Again, Nietzsche’s admonishments spring to mind.

  22. Franklin says:


    My opinion is that a lot of these murderers should be just let loose in the general population.

    My opinion is that revenge is not the answer.

    It’s certainly not a good reason for having the death penalty. Nor is deterrence, where most studies suggest it has zero or marginal effect. The only real arguable idea is that the death penalty prevents recidivism, which is true so long as you 100% definitely got the right person. But even in that case it only has a slight advantage over a life sentence.

    Once you throw in the legal costs, and the fact that it’s applied unfairly between whites & blacks, rich & poor, and it’s just not practical to have the death penalty.

  23. de stijl says:


    But even in that case it only has a slight advantage over a life sentence.

    Agree completely, but I can’t see how a “can never get out of prison” guy would have a lower recidivism rate than the “can never be alive again” guy. Wouldn’t the recidivism rate be equal in that case? 0.0% is a pretty hard floor 😉

  24. Franklin says:

    @de stijl:

    a “can never get out of prison” guy

    I was thinking escape!

    Or even murdering somebody else within the prison walls.