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Friday, May 01, 2015

Why is Glossip hard?

The following is by Corinna Lain (Richmond).

I’ll be guest blogging in June, and am very much looking forward to sharing ideas and, hopefully, generating conversation then. But after listening to this week’s oral argument in Glossip v. Gross, the lethal injection case currently before the Supreme Court, I feel the need to share now.

And here’s what I can’t figure out: why is this case hard?

We’ve got a district court that essentially upheld Oklahoma’s use of midazolam as the first drug in its 3-drug lethal injection protocol against a claim that it would not, and could not, insulate the condemned from the pain associated with the next 2 drugs of the protocol. The pain associated with those 2 drugs is undisputed—one of them is a paralytic that slows and then stops the diaphragm so the condemned slowly suffocates to death, and the other has been dubbed “liquid fire” because it produces the feeling of being burned alive. The Supreme Court has already held that if the first drug doesn’t insulate the condemned from feeling the last two drugs, that’s a violation of the 8th Amendment cruel & unusual punishments clause. So it all comes down to whether midazolam can reliably do that.

So back to my question: why is this case hard?

Midazolam is a sedative, not an anesthetic; it is uncontested that it has no anesthetic properties. The district court said that didn’t matter, relying on a doctor who opined that 500 milligrams of midazolam was enough to kill someone, so even if it wasn’t an anesthetic, it would still render condemned inmates unconscious so they wouldn’t experience the pain. The problem with that is (1) the doctor’s opinion was extrapolated from an estimated lethal dose amount and he made a math error of 3 decimal points in doing so, so the correct estimated lethal dose is actually 4,970 milligrams rather than 4.97 milligrams or even 497 milligrams (an error that is uncontested); (2) even if the drug was lethal at the 500 milligram amount, just because a drug is big & bad enough to kill you doesn’t mean it’s going to render you unconscious and unable to feel pain first; (3) even the sources upon which the doctor relied were sketchy—drugs.com (which explicitly states that its information “is not intended for medical advice, diagnosis or treatment”) and OSHA’s material safety data sheet (which explicitly disclaims “any warranty, express or implied, regarding its correctness”); and (4) there’s a clear consensus in the scientific community that goes entirely the other way. Interestingly, the Court now has an amicus brief by a group of pharmacology professors who are not in support of either side, but want the Justices to at least get the science right. And what they say is that midazolam is incapable of rendering the condemned unconscious at a level that would resist ‘noxious stimuli’ like surgery and pain-inducing drugs.

So you might be thinking how in the world did we even get here? My take is it’s all too easy to dismiss these claims as just another condemned inmate trying to get another day. And you can see this dynamic at the oral arguments in Glossip.

So while Justice Breyer is scratching his head trying to find something, anything, that actually supports the district court finding, and Justices Kagan and Sotomayor are taking Oklahoma to task for quoting medical propositions out of context and misleading the Court, Justices Scalia and Alito have a different point to make: this is all the abolitionists’ fault.

You have to be able to point to a better drug to get the job done, they say, and the reason better drugs aren’t available is because abolitionists have put pressure on drug manufacturers not to sell them (or at least not to sell them to executioners). They’re right about the pressure (kinda sorta—this is largely about European abolitionism, as a forthcoming article shows) but they’re wrong about the condemned having to come up with a lethal injection protocol that works in order to avoid a torturous death with a lethal injection protocol that doesn’t.

So long as capital punishment is legal, there has to be a constitutional way to carry it out, so the argument goes. I think that’s contestable, but even assuming it were true, the Supreme Court has already upheld a number of other execution methods, so the availability of other lethal injection protocols is a red herring. Weird as it sounds, I think there’s a good argument for the firing squad as a more humane method of execution, though I’ll save those musings for my stint as guest blogger. The point is this: if an execution method causes lingering death and/or unnecessary pain (and everything we know about midazolam suggests it does both) then that violates not just our sense of decency, but the constitution as well. And that’s true whether there’s a better lethal injection protocol out there or not.

So why is Glossip a hard case? Best I can figure, it’s because frustration with the success of abolitionists has created a blind spot on the law.


Posted by Howard Wasserman on May 1, 2015 at 09:21 AM in Constitutional thoughts, Criminal Law | Permalink


Brad: Thanks very much. This is not a paper I had seen before but look forward to reading. I do find it fascinating that left leaning and right leaning folks might reach overlapping consensus against the medicalization of capital punishment!

Posted by: I. Glenn Cohen | May 5, 2015 11:49:14 PM

On the medicalization of capital punishment from (what I assume is) the other side:

Posted by: Brad | May 3, 2015 12:11:46 PM

Great comments on the issue at hand.

Posted by: Dr. Rosemary Siring | May 2, 2015 7:05:28 PM


I would recommend people listen to the oral arguments, now available at Oyez.com and the Supreme Court's own website. Dramatic. Sotomayor basically called the state liars. Kagan was more passionate than she often is. Alito's cynical side came out. Justice Sotomayor also added an insightful comment about the optics of alternative means of executing people. The same sex orals were somewhat anti-climatic in comparison.

Posted by: Joe | May 2, 2015 1:16:04 PM

thanks for the comments. I think this case should be easy, even under the exacting standard of review. And the fact that it's not--that the Court might actually say 'oh we're fine with this, even knowing what we know'--based on frustration with abolitionist success just strikes me as bizarre. What makes it hard shouldn't. I'm not naïve about judicial decision-making, but I am surprised to see political considerations explicitly making their way into constitutional law. And as my colleague Jim Gibson notes, it's especially odd to see the originalists on the Court making the argument that the constitutional standard depends on what other drugs are available, leaving the constitution's meaning to shift depending on the facts of the day.

Posted by: Corinna | May 1, 2015 4:17:23 PM

ETA: The concerns about gaming are made worse because it isn't about the defendant being wrongly sentenced to die or anything. Kennedy is more sympathetic about that. It is about the means of execution & the whole thing seems to be the fault of abolitionists. As noted, the truth is more complicated. But, I have seen even those against the death penalty at times not taking lethal injection protocol litigation seriously.

Posted by: Joe | May 1, 2015 10:58:54 AM

Prof. Corinna Lain, your struggles here are a bit misplaced.

The case is "hard" because the conservatives think the abolitionists are gaming the system. Justice Alito et. al. flagged the concern in Baze v. Rees. They worried this was just a means to delay executions. Breyer raising open-ended concerns about the death penalty didn't help.

Yes, the case should be easy if looked at in a certain way. The drug protocol in effect should fall both on procedural (improper novel usage) and substantive (significant chance of unnecessary pain) grounds.

But, if it does not, the reason is fairly clear. The troubling reason behind that result is noted, but why should be be all "can't figure this out." That comes off as needlessly naive about how things work.

I'm against the death penalty, but there are some cases where that isn't necessary. Baze v. Rees on its facts was a harder case. As to alternatives, yes, it just might be that if you want the death penalty, another method is better. I'm left with either the firing squad or nitrogen gas. The firing squad doesn't seem to be acceptable to many other than a few Western states. Cases like this might shift things to nitrogen gas.

Posted by: Joe | May 1, 2015 10:53:39 AM

My apologies I should have said "great post CORINNA!"

Posted by: I. Glenn Cohen | May 1, 2015 9:55:56 AM

Great post Howard! On your last point regarding the firing squad I totally agree, and have argued with co-authors in a few places that there is a hidden medicalization of capital punishment, that gives people the mistaken impression that this is anesthesia not killing. Doing so also threatens to corrupt the values of the medical profession. See https://jama.jamanetwork.com/article.aspx?articleid=1874217 and http://www.msnbc.com/rachel-maddow-show/watch/doctors-pushed-to-reject-role-in-executions-283285059545.

Posted by: I. Glenn Cohen | May 1, 2015 9:55:22 AM

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