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Monday, June 29, 2015

On Glossip

So how are you doing after Glossip? 

This is the question I’ve gotten all day long.  I feel like a widow at a funeral, with well-wishers stopping by to pay their respects and offer condolences.    Thank God I wore black.

For the record, my take on Glossip is that the Justices upheld the use of midazolam in executions because they wanted to.  This shouldn’t come as new news (after all, this is how many, if not most Supreme Court decisions are made) but let’s just take a moment to call a spade a spade.  The law didn’t make them do it.  The facts didn’t make them do it.  Indeed, both cut the other way, as Sotomayor’s dissent shows in painstaking detail.

For those who want the Cliff’s Notes version of this 127-page decision, the ruling in Glossip had two bases:  (1) the district court didn’t err in finding that midazolam was likely to render a person insensate to pain; and (2) in any event, the petitioners didn’t meet their burden of showing a known and available alternative to midazolam. 

I’ve already posted on the first point, and I stand by everything I said there.  To understand how bad this ruling was on the merits, you really have to get into the weeds of the pharmacology of midazolam.  Sotomayor does that in her dissent.  The anesthesiologists’ amicus brief does that too.  My sense is that the Justices in the majority just didn’t want to hear it. 

Indeed, they all but say so, claiming that scientific knowledge pushes the boundaries of the judiciary’s expertise.  True enough, but after Daubert, isn’t it a little late in the day to be figuring that out?

That’s all I have to say on the first point (again, other than what I’ve already said).  Oh, and this—if you’re curious, just ask any doctor if they’d perform surgery, as in cut someone open, using only midazolam to make the person insensate.  Do me a favor and let me know how that goes, we can swap stories.

That leaves the second point—that the petitioners didn’t show the feasibility of other execution methods in lieu of midazolam.  The majority credits Oklahoma’s claim that it turned to midazolam because pentobarbital wasn’t available. 

But pentobarbital was used in 15 of the last 17 executions, so someone’s getting it.  Heck everyone’s getting it except apparently Oklahoma, which now has no need to get it because the Supreme Court said midazolam was just fine.  That’s pretty important because a single shot of pentobarbital is what is used to put down pets, and what is used in physician-assisted suicide.  There is virtually no risk of excruciating pain (other than that caused by inept executioners) because it’s not followed by drugs that cause excruciating pain.

But what about this required showing of feasible alternatives in the first place?  The majority states matter-of-factly that Baze “imposed a requirement that the Court now follows.”  Really?  Where?  The only place you can find such a thing is in the plurality opinion in Baze, which only three Justices signed onto—good luck finding the fourth and fifth votes for such a requirement.  Here’s the real deal: the majority made a move, and tried to pass it off as precedent.  It’s not.

But even if it was, that alleged showing comes from the claim that since the death penalty is constitutional, there must be a constitutional way of carrying it out.  That’s more controversial than it might seem at first blush, but taking it as a given, there are plenty of ways to carry out a death sentence besides using midazolam, or even pentobarbital—firing squad, electrocution, and gas (all of which have been blessed by the Court) being chief among them. 

Let’s be clear—Oklahoma is not saying that if it doesn’t have midazolam, it won’t be able to execute.  This state has more lethal injection protocols on the books than any other state in the Union (5) and more different execution methods to choose from as well (4).  The irony here is thick.  If there’s any state that has readily available alternatives to a midazolam concoction, it’s Oklahoma.

I’m back to where I started.  The Justices decided Glossip the way they wanted to, because they could.  Sometimes we celebrate when they make it up, sometimes we lament.  Over the past several days, I’ve done both.

I suppose that’s as good a note to end on as any.  Thanks to Prawsblawg for the invitation to guest blog this past month, and thanks to the rest of you for reading.

Posted by Corinna Lain on June 29, 2015 at 08:23 PM | Permalink



Thanks for this excellent and thoughtful post. I agree that the majority here took Baze and ran with it farther than I think is supportable. Even assuming that the plurality opinion in Baze is controlling under the Marks v. United States theory, Baze (on my reading) actually answered a different question than the one the majority in Glossip claims -- in Baze, the challengers conceded that when carried out as intended the challenged lethal injection protocol was constitutional, but argued that the State should be required to adopt an alternative regime to reduce the risk of harm when the protocol in force was not carried out as intended. The challengers themselves brought the availability of alternatives into play, and the majority said they had not succeeded in showing that such alternatives were feasible or readily available. The challengers' theory was that by showing the existence of alternatives, they could establish that sticking with the status quo imposed a substantial risk of unnecessary pain. This is not the same as saying that in order to establish a viable Eighth Amendment challenge to a method of execution, the challengers must provide evidence of a feasible alternative (indeed, this is why Scalia and Thomas did not join the plurality, because they thought the existence of alternatives was irrelevant).

And, of course, as you point out, it is simply false to state that alternatives to Oklahoma's use of midozalam do not exist. What the majority really seem to be doing is taking out their frustrations with the abolitionist movement on these individual petitioners from Oklahoma.

Posted by: Alex Reinert | Jun 29, 2015 9:50:42 PM

Holy crap. I had to have a back molar removed about ten days ago during an aborted root canal. I went into the root canal on two Halcions (same class of drug). I was totally chill and passed out with the added local until the oral surgeon started crushing the molar with a set of pliers to break up the tooth for extraction. The pain was excruciating. I've woken up with nightmares multiple nights since. That's with a local anesthetic. I can't imagine dental surgery with the sedative alone. Holy crap.

Posted by: Wow | Jun 29, 2015 11:10:20 PM

"Scientific knowledge pushes the boundaries of the judiciary’s expertise"

Two objections:

1) In deciding midazolam was okay they already made a judgement on the scientific evidence.

2) Doesn't the judiciary (through district judges) regularly weigh on matters of scientific knowledge? eg: Is this person insane?


Since this was primarily a fact-finding case shouldn't the court have a) Not granted cert or b) DIG'ed the case or remanded to the district court for fact-finding?

Posted by: Pranav | Jun 29, 2015 11:43:10 PM

"Scientific knowledge pushes the boundaries of the judiciary’s expertise"

Two objections:

1) In deciding midazolam was okay they already made a judgement on the scientific evidence.

2) Doesn't the judiciary (through district judges) regularly weigh on matters of scientific knowledge? eg: Is this person insane?


Since this was primarily a fact-finding case shouldn't the court have a) Not granted cert or b) DIG'ed the case or remanded to the district court for fact-finding?

Posted by: Pranav | Jun 29, 2015 11:43:17 PM

I am having great difficulty following the argument here.

1. If there is an argument that, under Marks, something other than the plurality opinion in Baze was controlling, I don't grasp it. On this point, Justice Sotomayor's dissent seems to be grasping at straws. Surely in Baze the position taken by Justices Thomas and Scalia was broader than that taken by the plurality.

2. In any event, a majority of the Court is now prepared to unite behind the Baze plurality's standard, and I am having equal difficulty understanding how can it be "cruel and unusual" for Oklahoma to fail to use a method of execution that is not available for its use. If the Eighth Amendment test being advocated requires a state to refrain from executing whenever a drug exists that it cannot obtain, then Justice Alito seems quite right to accuse the petitioners of seeking back-door abolition. What am I missing?

3. The district court made a finding that sodium thiopental and pentobarbital are now unavailable to Oklahoma. Why is that finding clearly erroneous? Even Justice Sotomayor embraced that finding. The fact that other states have been able to obtain pentobarbital in the past surely does not demonstrate clear error in the finding that Oklahoma cannot obtain it now. Indeed, the district court also found that there is a systematic campaign underway to deny states access to pentobarbital. It makes sense that such a campaign, over time, will present states with increasing difficulty in obtaining drugs. Justice Sotomayor embraced that finding as well.

4. If the real concern is pentobarbital's risk of inefficacy (as opposed to seeking back-door abolition), surely those concerned about pentobarbital will now launch a massive campaign to pressure the pharmaceuticals to provide it to Oklahoma and other states in order to avoid the serious risk of painful execution of which they complain. Right?

Larry Rosenthal
Chapman University Fowler School of Law

Posted by: Larry Rosenthal | Jun 30, 2015 10:03:25 AM

Interesting post, Corinna.

But maybe "widow at a funeral" is not the right metaphor here given, you know, that we're talking about real deaths and real executions of real people, none of whom you actually know.

Posted by: Gloober | Jun 30, 2015 11:53:55 AM

Regarding Marks, did Scalia & Thomas take the position that if the state intentionally used a torturous method because no other method was available & the defendant could not show that one was that it would be constitutional? This even granting the plurality set forth that test, which Sotomayor and the other three dissenters resist. The plurality was mainly about the substantial risk test. Not this wrinkle.

Anyway, the majority opinion ends denying that a barbaric method was being left open by its rule. I'm left with the idea that this is a sort of "plus" factor along the margins. After all, the majority resists accepting that they even have to decide the matter -- the district court in their view did not find this method is barbaric.

The primary dissent ends with the suggestion that the firing squad might be a better method, noting it still would have problems. It is interesting that nitrogen gas was not suggested.

Also, again, listening to part of the oral argument on C-SPAN, a justice or two made the suggestion that there was a progression to more humane methods over time. This would mean the firing squad was less humane than electrocution and the old fashioned gas chamber. People might have thought so at the time, but the assumption they were right each time a new execution method was (is) used is dubious.

Posted by: Joe | Jun 30, 2015 11:55:43 AM

Great comments, thx to all for engaging. Alex, you make the argument that I didn't in my post, but only because I thought it was too complicated for that setting. I was wrong about that, you made it beautifully. In Baze, the petitioners conceded that sodium thiopental, when administered correctly, would render the condemned insensate to pain; they advocated an alternative, even better protocol (a single shot of pentobarbital, as used on pets) and the court said no. In Glossip, the petitioners claimed midazolam would NOT reliably render the condemned insensate to pain, regardless of the alternatives. Those are 2 very different arguments. In Baze, alternatives were in it because petitioners put them in it; they were part of petitioners' argument. In Glossip, they weren't. The only possible relevance of alternatives is Glossip is under the claim, "I can't execute otherwise." But that's not what we had here, not even close.

Larry, if you look at the report on the botched Lockett execution, what you'll see is that DOC used midazolam because they had a deadline (an execution date) to meet that was days away. Not because they thought it was safe. Not because they didn't think they'd find pentobarbital over the next few weeks or months. In interviews they stated quite clearly that they needed something fast, and that's what they could get fast. By the way, pentobarbital was widely available, and used, in 2014 executions as well as 15 of the 17 executions in 2015. http://www.deathpenaltyinfo.org/execution-list-2014

Posted by: Corinna | Jun 30, 2015 2:19:16 PM


I am not sure how the petitioners can be accused of "back door abolition." The petitioners are sitting on death row, seeking to avoid being subjected to an execution that could torture them on the way to killing them. To my knowledge, they are not the ones who pressured drug companies to stop supplying penobarbital or sodium thiopental -- and even if they had I am not sure I see how it would be relevant. I have never before seen a Court hold the actions of a particular movement (or particular advocates) against individuals seeking to vindicate a constitutional right. I do not think we have seen or will ever see the Court asking lawyers representing corporations about the kind of advocacy those lawyers (or other companies) might engage in outside of the courtroom -- but maybe someone will prove me wrong.

As for availability, even if the drugs may be unavailable as a practical matter, doesn't that prove a little too much? there are all sorts of practical limitations on the ability of the State too carry out certain punishments, starting with funding. If Oklahoma had said "given our budgetary constraints, we just can't afford to buy the humane drugs," does that make those drugs unavailable as a practical matter? They could certainly say that they tried "in good faith" (in the words of the majority) to obtain them. So even if Baze actually says what the Court claims, we still have to figure out what it means for an alternative mode of execution to be "available."

Posted by: Alex Reinert | Jun 30, 2015 2:55:19 PM

Several commentators are casting aspersions on the Court's invocation of Baze. But whether or not that opinion was controlling (and Glossip's majority makes it clear that it was), the fact is that a 5 member court has now adopted Baze's standard. The attack on Glossip's characterization of Baze is a distraction.

Posted by: Sean | Jun 30, 2015 4:16:50 PM


It's pretty clear that Glossip expanded the logic of the Baze plurality, even assuming the plurality opinion was controlling.

In Baze, the idea was that there was a punishment that might be constitutional in a vacuum, but that it would be cruel in unusual because it would be imposed in light of an available, less painful alternative.

In Glossip, the Court - either deftly or clumsily, depending on who you ask I guess - reinterprets this as a rule that a punishment is constitutional if there is no less painful alternative.

In the first scenario (Baze), the painfulness of the contemplated punishment is necessary AND SUFFICIENT to trigger an Eighth Amendment bar. Under the second (Glossip), it's necessary BUT NOT SUFFICIENT. You've still got to go to a second-order inquiry about alternatives before you can find it unconstitutional.


Posted by: kovarsky | Jun 30, 2015 4:26:31 PM

Sean, it might be a limited thing, but if the majority here did expand the reach of Baze v. Rees, it is notable. They don't claim to expand on it. If so, it can be used to argue that the majority was wrong. This is somewhat academic given the result, but this is after all an academic blog.

Also, if they expand here, they might expand something else in the interests of merely applying it. And, logically, the justices would do it for a comparable result.

Posted by: Joe | Jun 30, 2015 4:47:26 PM

Sorry for my hastily typed comment.

Obviously I meant "cruel AND unusual," and, more importantly, I meant "even assuming the plurality opinion was PRECEDENTIAL."

Oy, babies.

Posted by: kovarsky | Jun 30, 2015 4:59:34 PM

Corinna: Your argument seems to be that viewing the list at deathpenaltyinfo.org coupled with the report on the Lockett execution makes it apparent that the district court's finding on the unavailability of pentobarbital was clearly erroneous. Why do those two sources somehow trump the evidence presented to the district court? Neither of them actually says anything about the supply of pentobarbital available to Oklahoma at the time fo the hearing in the district court. You'll also have to explain why Justice Sotomayor (who you do not accuse of result-oriented reasoning) was somehow bamboozled into accepting the district court's finding that sodium thiopental and pentobarbital were unavailable to Oklahoma. I don't think you can accuse her of bloodlust.

Alex: If your argument that it was somehow "cruel and unusual" for Oklahoma to fail to use a drug that it could not obtain, you'll have to explain. As it happens, it seems to me that your hypothetical "proves too much." I'm happy to agree that if cost was the only reason that Oklahoma did not obtain sodium thiopental or pentobarbital, there could well be an Eighth Amendment violation. But, Glossip did not present that question, did it? The district court found that these drugs were unavailable at any price. It seems equally clear to me that at some point cost becomes relevant to the Eighth Amendment calculus. If the pharmaceuticals would sell pentobarbital to Oklahoma for no less than $1 billion per dose, on your view, would the Eighth Amendment require its use? Does Oklahoma have to close its schools and prisons if that is the only way it can afford pentobarbital? And, if it is unfair to characterize advocacy of a test that requires Oklahoma to use a method of execution that it cannot in fact use -- regardless of cost -- as "back-door abolition," you'll have to explain that to me as well. Of course, I don't blame petitioners for using the only argument at their disposal given the district court's findings, but neither do I blame the Court for appropriately characterizing their argument as amounting to back-door abolition.

Lee: Even if the Court moved beyond the Glossip plurality's position, there surely was nothing improper about that, even under Marks. In any event, I still don't understand how it can be cruel and unusual for a state to fail to use a method of execution that is unavailable for use. If one is willing to indulge in the unremarkable proposition that the burden of proof is on the party seeking injunctive relief, it seems quite proper for the Court to require a plaintiff seeking to enjoin use of a method of execution on Eighth Amendment grounds to identify an alternative method that poses less risk and that can actually be used. It the State is using the best method that is actually available to it, I don't see how it can be fairly accused of seeking or even tolerating the "wanton" or "unnecessary" infliction of pain.

I note that no one seems interested in starting a campaign to pressure the pharmaceuticals to make sodium thiopental or pentobarbital available to Oklahoma. Why not? I thought the concern here was improving the method of execution, not back-door abolition.

I agree that we should not blame the petitioners for the unavailability of sodium thiopental or pentobarbital, but, even on Justice Sotomayor's view, there is no basis to blame Oklahoma either. We should instead blame the abolitionists who launched the campaign to pressure the pharmaceuticals. The predictable result of a campaign to deny the states the use of the most efficacious drugs available is to force them to less satisfactory alternatives.


Posted by: Larry Rosenthal | Jun 30, 2015 5:30:59 PM

Larry: Thanks for the thoughtful response. My short answer is that if the only way to execute someone without a substantial risk of torture is unavailable, then the State may not execute that person until the method becomes available. It is a basic Eighth Amendment principle that if the choice is between a torturous punishment and no punishment at all, the State must choose the latter. In this case of course, there could still be some punishment, just not the ultimate punishment until a humane alternative is available.

Posted by: Alex Reinert | Jun 30, 2015 5:55:00 PM

"It the State is using the best method that is actually available to it, I don't see how it can be fairly accused of seeking or even tolerating the "wanton" or "unnecessary" infliction of pain."

What if the best method is is akin to burning alive as was alleged to be the case here? Are you saying that there is such a compelling need to execute -- it seems to be a voluntary policy choice given many states don't execute people at all -- people that this is so?

Apparently so since raise that hypo about starving school budgets and such as if you just have to execute those handful of people somehow.

"I note that no one seems interested in starting a campaign to pressure the pharmaceuticals to make sodium thiopental or pentobarbital available to Oklahoma. Why not? I thought the concern here was improving the method of execution, not back-door abolition."

The author's multiple pieces to me made it rather clear that she is against the death penalty & does not wish to promote its use here. And, overall, her posts leads me to believe she thinks lethal injection as a whole is problematic, so any improvement here would be limited at best. There still would be problems, just of a different caliber, if we work to promote an uptick of executions via better supply.

Finally, like Justice Sotomayor, she has suggested if we are stuck with the death penalty, lethal injection is not the "best" means. The firing squad and nitrogen gas were suggested as alternatives.

ETA: I'm trying to take this thing on face value, but honestly, it comes off as coy or fatuous especially given her past writings on this blog and the reality that it is not "lethal injection" or nothing.

Posted by: Joe | Jun 30, 2015 6:23:27 PM


I guess I don't understand this: "If one is willing to indulge in the unremarkable proposition that the burden of proof is on the party seeking injunctive relief, it seems quite proper for the Court to require a plaintiff seeking to enjoin use of a method of execution on Eighth Amendment grounds to identify an alternative method that poses less risk and that can actually be used."

What does the fact that this is in a prelim-injunction posture have to do with whether one interprets the underlying rule of decision to include a requirement that there be some less painful method? Again, it is the less-painful-method requirement itself that many (myself included) view as the major deviation from Baze. Your assumption seems to be that because the death penalty is theoretically constitutional, the court must necessarily treat the least painful way of imposing it as permissible. I confess to finding that argument strange. It seems obvious that if all midazolam, sodium thiopental, and pentobarbital disappeared tomorrow - and there were no other authorized method of execution - states wouldn't be free to just ignore the anesthetic agent altogether and administer the cocktail without it.

I get that some people believe that, because capital punishment is theoretically constitutional, then the least painful mode of it must necessarily be constitutional. I just think it's really hard to squeeze that out of Baze.

Posted by: kovarsky | Jun 30, 2015 6:46:49 PM

I would also love for someone to explain the "guerrilla war by abolitionists" idea to me. The groups putting the screws to the EU suppliers aren't specifically targeting the cheap drugs; they're targeting any drug used in an execution. This isn't some sneaky attempt to inflate price by cutting off downtown supply; it's a sincere attempt to prevent importation of the drugs at any price point. And when you acknowledge THAT, then it's really, really hard for me to understand why the Court is under a unique obligation to modify 8th amendment law to reflect the political economy of lethal injection supply. I take it that even the "conservative" justices recognize this issue - as it dominated oral argument but was clearly suppressed in the written opinions.

Posted by: kovarsky | Jun 30, 2015 7:04:56 PM

(And actually, even if the strategy was to affect the political economy of lethal injection supply by attacking only cheap drugs, I still don't understand the constitutional basis for modifying 8th amendment doctrine to reflect that.)

Posted by: kovarsky | Jun 30, 2015 7:07:00 PM

I'm just looking forward to hearing Justice Alito complain to Texas about the "guerrilla war by abolitionists" in the abortion context. But I'm not holding my breath.

Posted by: Anonymous | Jun 30, 2015 9:30:29 PM

Anonymous, interesting point. But assuming that's a fair comparison, aren't pretty much all the Justices (and perhaps most commenters) likely inconsistent on that score? If everyone changes sides, I don't know why we would single out just one Justices for potentially doing so.

Posted by: Orin Kerr | Jun 30, 2015 10:56:22 PM

Alex, Joe and Lee: The view that it would be unconstitutional to utilize the death penalty if every available method involved an unacceptable risk of the wanton of infliction of pain is fair enough. Note, however, that this is not an argument that the petitioners made in Glossip, and not an argument that the Court rejected. Even after Glossip, if a plaintiff wants to try to prove that every available alternative would violate the Eighth Amendment, he remains free to try. The petitioners' argument was instead that the method Oklahoma intends to use involves an unacceptable risk of an unnecessarily painful death, and we won't tell you whether Oklahoma had an available acceptable alternative. If it isn't clear that there is an a better available alternative, and if the plaintiff is unwilling to argue that every available alternative is unacceptable, how can Oklahoma's method amount to cruel and unusual punishment?

I should add that in my view, the claim that the Court has is somehow "modifying 8th Amendment doctrine" is quite unsupportable. When did the Court hold that a method of execution that presents a risk of pain is unconstitutional even if the plaintiff cannot prove that the State has failed to use an available alternative that reduces the risk of pain? If anything, it seems to me that the law was settled (or something close to being settled) to the contrary since at least Louisiana ex rel. Francis v. Resweber by requiring proof of a serious risk of "unnecessary" infliction of pain. The joint opinion in Gregg v. Georgia, for example, states that a punishment "must not involve the unnecessary and wanton infliction of pain." The requirement that pain be "unnecessary" surely implies that an element of an Eighth Amendment claim is a showing of a superior alternative.

Posted by: Larry Rosenthal | Jun 30, 2015 11:24:41 PM

Larry, can't a particular execution method still be an "unnecessary" infliction of pain if it is the least painful available method of capital punishment in a particular state? I don't think the standard means "unnecessary within the category of capital punishment." The superior alternative would be LWOP.

I'm not being coy either. This is likely what Sotomayor had in mind when she said: " 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: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated."

Posted by: kovarsky | Jun 30, 2015 11:43:59 PM

I think trying to debate on how much the Court is "altering" doctrine here is at some point somewhat tedious if as I said somewhat interesting.

The majority opinion ended with the denial that it was allowing truly barbarous punishments. The bottom line is that it didn't think this specific method was found to be that; it did not contra the claim accept there is an unacceptable risk of something akin to burning at the stake. As suggested by the OP and one or more essays at SCOTUSBlog, this alone is enough for concern.

"If it isn't clear that there is an a better available alternative, and if the plaintiff is unwilling to argue that every available alternative is unacceptable, how can Oklahoma's method amount to cruel and unusual punishment?"

As kovarsky notes, a major concern is that even if there isn't a better alternative, there are some punishments that are so barbaric that it is unconstitutional for the states to use them. Unless you think it is a compelling state interest to execute someone, which seems dubious, since some states don't -- it's a policy choice, not a compelling need that justifies even the use of barbaric execution methods.

And, the question of other alternatives (e.g., nitrogen gas) was raised in oral argument. They didn't claim that no method was constitutional. They said it wasn't clear until they were given a full accounting of the means that would be used. The plaintiffs can still argue THIS means is barbaric. Again, the bottom line is that the majority rejected that as a factual question.

Posted by: Joe | Jul 1, 2015 12:05:27 AM


So the Eighth Amendment requires LWOP, I see. No wonder Justice Alito is worried about back-door abolition! Yet, if that is your position, why criticize the Court for "modifying 8th Amendment doctrine"? Your position, it seems to me, involves more than a bit of "modifying." And, if the 8th Amendment goes beyond requiring use of even "the least painful available method of capital punishment" and instead requires avoiding all "unnecessary" pain, why stop at LWOP? Death penalty opponents frequently tell me that LWOP is worse than capital punishment. They tell me of the enormous mental anguish LWOP entails. Surely your logic suggest that this is "unnecessary" as well. Perhaps the 8th Amendment requires no more than a few months house arrest at a cut-rate motel lacking cable service.

Posted by: Larry Rosenthal | Jul 1, 2015 10:37:49 AM

Larry: Thanks again for your thoughts. On your first point, are you now saying that to show that a method of execution is unconstitutional, a condemned person has to show *both* that the method is torturous and either (1) there is an available alternative that is not torturous or (2) every other available alternative is torturous? I understand that the Court thinks Baze stands for proposition (1), but isn't that in direct tension with your proposition (2)? That is, if one can show that there are no non-torturous alternatives, doesn't that mean the petitioners will not satisfy Glossip, because they will not have shown the availability of an alternative? It seems that a condition of meeting Glossip's gloss on Baze is that the challengers concede that some available alternative is non-torturous.

As for how this squares with Eighth Amendment jurisprudence overall, I suppose it depends on whether we think challenges to method of execution should be treated differently than, say, challenges to conditions of confinement. I find it difficult to justify treating them differently (they are both about how the State carries out a particular punishment), and in the conditions context, to show a substantive violation (say, overcrowding), it is not necessary to talk about alternatives. When one gets to remedies, alternatives might come into the picture because of the PLRA, but to establish a violation of the constitution, I do not read the jurisprudence to require that a prisoner show that the prison staff had an alternative open to them that would have reduced the substantial risk of harm presented by a particular condition. As for Francis v. Resweber, it predates almost all modern Eighth Amendment jurisprudence (excepting Weems) and all of the jurisprudence surrounding deliberate indifference and the like -- and in any event I think it is a stretch to say that it covers this question. There are lots of different formulations of "cruel and unusual punishment" -- the jurisprudence as a whole contemplates that some punishments are beyond the pale, regardless of the alternatives.

Orin: Of course life is replete with inconsistencies in these matters, but this seems different. Here, at least as I see it, the Court was ascribing the actions and success of a social movement to a group of individuals seeking relief in front of them, and holding the individuals accountable for that movement: as if to say, "Nice try, folks -- we know exactly what you are doing here and we are going to teach you a lesson." I really have never seen that before, and I do not expect to see it again, except perhaps in this context. I suppose if it were the precise individuals in front of the Court who had tilted the playing field in some way through outside advocacy, there would be some laches or estoppel argument for taking it out on them. But the objections raised here seem to me different from the typical "I like [X] methodology when it produces [Y] outcome, but not when it produces [not Y] outcome."

Posted by: Alex Reinert | Jul 1, 2015 10:45:55 AM


I'm clearly not saying the 8th Amendment requires LWOP as opposed to capital punishment in every case; I'm not sure whether you sincerely believe I've said that. What I'm saying, what Alex is saying, and what the dissenters are saying is that there are certain arrays of capital punishments that have a least-painful member that still violates the 8th Amendment. See, e.g., Alex upthread comment: "There are lots of different formulations of "cruel and unusual punishment" -- the jurisprudence as a whole contemplates that some punishments are beyond the pale, regardless of the alternatives."

As an aside, if you believe in the theory of revealed preferences (I do), there are very very few volunteers on death row, where the overwhelming majority of inmates try to opt out of a capital sentence into LWOP. I know there are some people who have a which-is-worse argument about LWOP v. capital punishment; I'm just not sure how you cash the result of that argument out if the people actually facing that choice fall decisively on one side or the other.

Posted by: kovarsky | Jul 1, 2015 11:31:29 AM


If we assume with the joint opinion in Gregg v. Georgia that capital punishment is constitutional and that a state can properly conclude that there is a legitimate penalogical reason to prefer it to any alternative, then it surely follows that there are at least some methods of execution cannot involve the infliction of "unnecessary" pain within the meaning of the Eighth Amendment; the Eighth Amendment, after Gregg, permits the infliction of some level of pain necessarily associated with execution. If that is right -- and it seems to me that any position that does not accommodate this point is fairly accused of back-door abolition -- it also follows that the appropriate Eighth Amendment question when it comes to methods of execution focuses on the relative risk of unnecessary pain that inheres in various methods. It has been settled since Lousiana ex rel. Francis v. Resweber that a risk of unnecessary pain in a method of execution is itself insufficient to brand in cruel and unusual. (If Francis was somehow overruled not only did I fail to notice, but so did the petitioners in Glossip, who cited it with approval in their own brief and made no argument that it was no longer good law). The question is instead about the relative risks that inhere in various methods and the states response to evidence that a particular method presents far greater risks than available alternatives. If a state consciously refused to use an available alternative that involved a plain and substantially lower risk of pain, then I could begin to understand how its decision might be "cruel and unusual" in the sense that it reflected "deliberate indifference" to the risk of unnecessary pain, as Estelle v. Gamble described the requisite mental state for imposing cruel an unusual punishment in a prisoner case (since you seem to like those). But, when the plaintiff himself is unsure whether there is a superior available alternative, how can one say that the state's refusal to use a method that even the plaintiff is unsure is superior amounts to "cruel and unusual" punishment?

Posted by: Larry Rosenthal | Jul 1, 2015 2:41:14 PM

I've been following these comments with great interest, and my sense, fwiw, is that there's no moving Larry, who comes at it from the same perspective as the majority justices--this is the fault of "abolitionists" (whoever they are) so you get what you get (btw Larry, that's not intended as a slam on you--I disagree with the position but hey, you're in good company!). So, what I see as an important doctrinal move, he sees as an "in any event" so let's move on. A distraction. (That move matters to me, btw, because it claimed to be just following Baze, so no need to justify it on the merits, we're just following precedent here...) I wonder if both sides of this debate could at least agree that frustration with abolitionists was driving much of this ruling--whether one's reaction to that is "doggone right" or "so unfair." On that score, I think this is one of the best posts I've seen:

Posted by: Corinna | Jul 1, 2015 5:43:00 PM

Larry, I'd like to focus on the court's pronouncement that since the death penalty is constitutional, there must be a constitutional way of carrying it out. (Corrina - you seem to have an issue with this pronouncement and I'm interested in hearing your position.)

Let's assume this statement is correct. It does not follow that there must be a constitutional way of carrying it out in every state that chooses to execute someone. Why should one's Eighth Amendment right change depending on which state one lives in? Let's imagine that Glossip lived in Texas and Texas decided to use midazolam because pentobarbital is too expensive. I'd hope the court would rule that the method of execution would be cruel and unusual because death by injection of the drug cocktail (without a proper anesthetic) is akin to being burned alive. Does the use of this drug cocktail magically become non-cruel and non-unusual across the border because Glossip cannot show that Oklahoma has another method of executing him?

Posted by: Mendel | Jul 1, 2015 6:11:17 PM

Note that this isn't the first time 5 Justices applied Baze. See http://www.supremecourt.gov/orders/courtorders/102610zr.pdf

Posted by: Steve H | Jul 1, 2015 6:20:34 PM

Hi Mendel, to answer your question, the claim is "if the death penalty is constitutional, then there must be a constitutional method of carrying it out." This is a plausible argument. Here's another: if there's no way to carry out the death penalty without torturing someone, do we then say, oh well I guess it's ok to torture because the death penalty is constitutional so that's just the way it goes? I think not. I think we'd then say, if the only way to get it done is cruel & unusual, then the death penalty is C&U too. In short, I think the former is a plausible argument, but the logic could run the other way too, and that's no less plausible (in fact, that's how I'd lean). Having said that, I don't think that's not where we are, or where we'll ever be. There are plenty of ways to carry out the death penalty, ways that the Court has already countenanced. So that's part of the reason I've been scratching my head here--if the whole point of alternatives is that states have to have a way to execute, then why does it even matter about the availability of drugs? Ohio has electrocution on the books, and firing squad, and gas.

Posted by: Corinna | Jul 2, 2015 11:47:34 AM

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