Death penalty opponents have long been accustomed to taking their legal gains small and discrete, given the Supreme Court’s lack of interest in reconsidering its stance on the legality of capital punishment writ large. Over the past 12 years, abolitionists have had no small shortage of such gains, including bans on executing mentally disabled defendants, juvenile defendants, and those convicted of offenses other than murder. Their success concerning who may be executed and what they may be executed for, however, has not extended to questions of how they may be executed.
On Friday, however, the Supreme Court signaled a potential willingness to scrutinize execution methods more closely, in the wake of highly publicized lethal injections gone horribly amiss. Under its current standard, established in 2008 in Baze v. Rees, an execution method may be held to violate the Eighth Amendment only if it presents a “clear risk” of “severe pain” relative to what an alternative protocol might inflict. The existence of a less painful alternative, in and of itself, would not constitutionally compel the state to abandon its current methods. In reconsidering this precedent, the Court is also addressing two related questions: (1) whether three-drug execution protocols are unconstitutional if the sedative fails to do its job sufficiently, thus exposing the individual to significant pain from the other two drugs; and (2) whether a death-row inmate’s challenge to an execution proposal requires him or her to demonstrate the existence of a superior alternative.
The decision to grant review in Glossip v. Gross should not be read as a sign that Justice Anthony Kennedy, the Roberts Court’s quintessential swing vote, has changed his mind on the issue. Only four votes are needed to grant review, but five are needed to grant a stay of execution. The result is a curious state of affairs in which a death-row inmate could win his case, but have the victory come too late to save his life. To date, the Court has refused to stay the three scheduled Oklahoma executions at issue in Glossip, thereby suggesting that the fifth vote for overturning the Baze precedent has not yet emerged. (On Monday, Oklahoma did apply to the Court for a stay of execution limited to the three inmates involved in the case, but their application proposed that the Court lift the stay if the state can procure the drugs needed for an alternative protocol.)
What’s interesting to me is the strategic calculus of the four justices voting for the stay, whom we can presume were also the four who voted to grant review. Perhaps they feel confident that after oral argument, a fifth vote will emerge to constrain states when they carry out executions. (Indeed, one of the rationales for the Court’s adoption of the “rule of four” is that it leaves open the possibility that oral argument and intra-Court deliberation might change minds. At the very least, the rule might discourage outside observers from viewing the vote to grant review as equivalent to a vote on the merits.)
Such optimism, however, seems misguided in light of the absence of a fifth vote to grant a stay; any justice seriously entertaining a vote against death-penalty states presumably would want to prevent said states from executing death-row inmates while their claims are still pending. To be sure, Oklahoma’s request for a stay is predicated on that stay being lifted once the state has identified an alternative protocol. In the state’s view, discontinuation of the sedative at issue, midazolam, would remove any barriers to executing the inmates, whose guilt is not being contested. But any alternative protocol would have to undergo the same level of scrutiny the Court is currently devoting to midazolam, or the possibility would still exist that an inmate could be executed using a method that violates the Eighth Amendment. If the liberal wing is hoping that Justice Kennedy would join it, after he had passed on the opportunity to delay the executions for five months while the case was pending, there is a strong possibility that its hopes are misguided.
But what if the liberal justices, rather than acting misguidedly, are taking a longer view of which strategic actions will serve their interests best? Perhaps those favoring review are fully aware that they could lose on the merits, yet still benefit from the Court’s airing the various issues surrounding lethal injection as currently administered. Half a dozen years ago, the Court that decided Baze treated as speculative the prospect that lethal injections might not go according to design. Hearing the Oklahoma cases returns to center stage not just Clayton Lockett’s agonizing botched execution, but all lethal injections that looked like his. Death-penalty states have worked very hard to safeguard their practices from public scrutiny; as such, a victory at the Supreme Court will feel Pyrrhic to them if it is accompanied by a highly publicized accounting of how states do death. Conversely, for the liberal justices Glossip v. Gross becomes a no-lose proposition: either the Court constrains death-penalty states, or the continuing negative publicity leads to pressure on state legislatures to change their policies, and on their drug suppliers to refrain from participating in lethal injection. Come April, when the Court holds oral argument, we should have a better sense of whether the liberal bloc’s short-term tactics paid off. But if the Court sides with Oklahoma, we’ll have to wait much longer to determine whether losing the battle will help them win the war.
UPDATE (1/28/15, 5:15 pm): The Supreme Court has ordered Oklahoma to postpone lethal injections using midazolam until the Court has ruled on the legal challenges surrounding its use. The Court, however, did not say whether the state could conduct executions using some other protocol.