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Wednesday, June 24, 2015

In Anticipation of Glossip

I’m excited.  Not like Harry Potter World excited, but excited in that geeky, purely academic way that sometimes feels inappropriate in the death penalty context.  The Supreme Court will issue its ruling in Glossip any day now, and certainly within the next 7 days.  What will the Justices do?

I posted a comment earlier titled why is Glossip hard? so yeah, you could say I have a point of view.  In this post, I’ll pick up where I left off, and think a bit more about what seems to be making this easy case hard, at least for the Court’s conservatives: abolitionist sentiment. 

The reason the Court is stuck considering the constitutionality of midazolam in lethal injection protocols is that the states are stuck using it.  More effective drugs—sodium thiopental, pentobarbital (of the uncompounded variety), and propofol—have all been taken off the market, or at least out of executioners’ hands, by the companies that make the drugs. 

Why?  In part it’s because abolitionists have played the ‘name and shame’ game, calling out drug companies whose mottos include “advancing wellness” for selling their drugs to put people to death.  And in part it’s because European governments, which have long been abolitionist, have tightened their export controls.  So yeah, it’s fair to say abolition sentiment of one variety or another is behind the current shortage of death dealing drugs.

That led Justice Scalia to blame the “abolitionist movement” for the mess lethal injection is in nowadays, and for Justice Alito to ask whether it was “appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty.”  For the condemned, maybe those were lost votes anyway, but then Kennedy asked The Question: “What bearing, if any, should be put on the fact that there is a method, but that’s not available because of opposition to the death penalty?” 

Now we’ve got everyone’s attention.

George Will says the success of abolitionists in convincing drug companies not to play merchants of death, and of European governments in enforcing their export controls, is of no moment.  “Public agitation against capital punishment is not relevant to judicial reasoning,” he says, “and it is not the judiciary’s business to worry that a ruling might seem to ‘countenance’ this or that social advocacy.” 

It’s worth noting that before abolitionists stumbled upon the lethal injection drug supply as a way to thwart executions, there was a shortage in the raw ingredients necessary to make those drugs.  Indeed that and some other random events are what started the scramble for death drugs in the first place (as my colleague Jim Gibson and I detail in a recent article).  So what if the coveted lethal injection drugs were unavailable because of problems in the upstream supply rather than downstream distribution? 

I’m left wondering why it matters why the traditional drug protocol is unavailable; indeed, why abolitionist sentiment is in this at all.  The ‘naming and shaming’ on the domestic side is free speech, and the export controls on the international side are a sovereign state’s prerogative (and one we’ve used to express our moral disapprobation numerous times). 

I’m with George on this one, the reason for the shortage shouldn’t matter. 

Posted by Corinna Lain on June 24, 2015 at 08:32 PM in Criminal Law, Law and Politics | Permalink



I actually think a different argument could be made, namely that the reason why the traditional drug protocol is unavailable matters, and it in fact supports the argument that the death penalty is inconsistent with evolving standards of decency. After all, the Court looks to indicators of public opinion in assessing evolving standards of decency and the decision by some drug companies not to provide the necessary ingredients for lethal injection is presumably reflective of that public opinion (this Court of all courts should see the decision as a rational economic decision by a corporate firm to respond to public sentiment). I am not saying that this would be enough for an advocate to win the day, but it is one reason I was perplexed by the questions posed by some of the Justices in Glossip.

Posted by: Alex Reinert | Jun 25, 2015 12:01:44 AM

It's perhaps worth noting that George Will is also a death penalty abolitionist.

Posted by: Allen | Jun 25, 2015 1:30:55 AM

Alex, query whether that argument works. Most for-profit companies try to maximize profit
by serving a specific market niche. It's tough to draw societal lessons from what products
the company sells. Example: If a particular company decides to make and sell $5,000
handbags, that doesn't show that society as a whole approves of $5,000 handbags.
It just shows that one company thought it could make a buck doing that. Similarly, if I
start a public campaign to try to get a local store to stop selling kale, and my efforts make it
unprofitable for the store to sell kale, that doesn't mean that society as a whole disapproves
of kale.

Posted by: Allen | Jun 25, 2015 1:44:20 AM

Alex, interesting! I hadn't thought of that take before. I do think Allen has a point, that effective naming & shaming doesn't necessarily mean society's standards have evolved as a whole. It does say, however, that companies realize that selling drugs to depts. of correction for executions is bad PR when you're in the healing business. And I think that's what a lot of this is about--business. We only had 35 executions in the entire country last year, so even if just one pharma company was the supplier for all 35, we're talking a miniscule part of their overall business, and certainly not worth the bad PR that comes with it.

Allen, yes, George Will is an abolitionist, of sorts. As he notes in the article I linked to above, it's not that these people don't deserve death, or that the retributive instinct is bad. It's that the cost is so high--in money, in terms of innocents on death row, etc. As he puts it, the death penalty is a big government program, so skepticism is in order. That's a little different from where most abolitionists are coming from, but you're right--in the end, he too thinks we should just get rid of the death penalty.

Posted by: Corinna | Jun 25, 2015 9:30:21 AM

I think Allen has a point -- we need to see if the pressure that lead to the shortages was representative. There is from my understanding some evidence it is. The 8th Amendment rule is "cruel and unusual" and though that is something of a term of art, that is, the courts have not merely tried to see if both occur, they have put forth some effort to use various techniques to see if something is "unusual." OTOH, determining "contemporary values" is likely to be selective in some sense. Anyway, to the extent the pressure is international, international opinion has long been used as a factor in judging 8A concepts.

Posted by: Joe | Jun 25, 2015 9:40:05 AM

Folks, I am petty sure I said that the argument is not enough to win on its own, so I am definitely not trying to make that case. As the Court's jurisprudence on evolving standards of decency shows, however, the sources for determining when standards have evolved (legislation, jury verdicts, expert opinion, and extraterritorial norms) are not all representative of the entirety of public opinion -- so the fact that the decision by these pharmaceuticals may not be fully reflective of public opinion does not seem like a huge deal to me. I was just trying to suggest that we could see the unavailability of the drug protocol in a different light than some members of the Court did. My understanding is that the unavailability was the confluence of many factors -- public pressure, norms in other countries, and professional standards (pharmacists' associations in the US generally decided that they could not dispense the formulary to States for the purpose of executions) -- all of these are relevant to evolving standards of decency, but obviously not dispositive. As to Allen's point, first I am not sure that pharmaceutical companies have that specific of a market niche -- they are trying to maximize their market and they have done a pretty good job of doing that. But even if they had a specific market niche, isn't that more evidence of broad public opinion (that is, they are not making the decision because of their particular market, unless there is some reason to think Zoloft users really care about the death penalty -- instead, they are thinking broadly about how their provision of the drug cocktail affects their public image to all potential consumers)?

Now there are all sorts of reasons to be wary of making this argument -- do we really want to give corporations more power in society, by taking their marketing decisions to be reflective of public opinion in a constitutional sense? This is a strategic decision and I could see many reasons to forego this argument on those grounds.

Posted by: Alex Reinert | Jun 25, 2015 11:25:46 AM

well put! and you're spot on in recognizing that various indicators of "evolving standards" are just a slice of public, professional, international opinion, etc. It all goes in the hopper...

Posted by: Corinna | Jun 25, 2015 11:57:05 AM

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