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.