Supreme Court justice wonders whether death penalty violates Constitution
Supreme Court justices Stephen Breyer (left) and Antonin Scalia testify before the Senate Judiciary Committee on Capitol Hill in 2011. (Photo: Alex Wong/Getty Images)
The Supreme Court on Monday upheld the use of midazolam in lethal injections for death penalty sentences, despite the fact that the controversial drug was used in several recent botched executions.
And as was the case in last week’s historic rulings, the written opinions from opposing justices made for some juicy judicial reading.
In Glossip v. Gross, aka the lethal injection case, Justice Sonia Sotomayor issued a scathing dissent, arguing the logic of Justice Samuel Alito’s majority opinion — that the prisoners “failed to identify a known and available alternative” drug — the state could theoretically execute them any way it saw fit:
Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment — the chemical equivalent of being burned alive. 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.
In response, Alito and the majority called Sotomayor’s extrapolation “outlandish rhetoric.”
The Supreme Court tête-à-tête, though, was far from over.
“For the reasons stated in Justice Sotomayor’s opinion, I dissent from the Court’s holding,” Justice Stephen Breyer wrote in his own, 41-page dissent. “But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.”
More from Breyer’s dissent:
Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court’s view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. The circumstances and the evidence of the death penalty’s application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.
“Welcome to Groundhog Day,” Justice Anthony Scalia wrote in response:
The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11-month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. They rely on this provision because it is the only provision they can rely on. They were charged by a sovereign State with murder. They were afforded counsel and tried before a jury of their peers — tried twice, once to determine whether they were guilty and once to determine whether death was the appropriate sentence. They were duly convicted and sentenced. They were granted the right to appeal and to seek postconviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give.
The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though, concurring they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good.
Scalia also dismissed Breyer’s argument that the death penalty is not likely a “significant” deterrent to commit violent crimes:
We federal judges live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans’ everyday lives. The suggestion that the incremental deterrent effect of capital punishment does not seem ‘significant’ reflects, it seems to me, a let-them-eat cake obliviousness to the needs of others. Let the People decide how much incremental deterrence is appropriate.
Last week, it was Scalia’s dissent over the court’s ruling in favor of Obamacare that generated the most waves.
“Today’s interpretation is not merely unnatural; it is unheard of,” he wrote. “The Court forgets that ours is a government of laws and not of men. That means we are governed by the terms of our laws, not by the unenacted will of our lawmakers.”
Scalia added: “We should start calling this law SCOTUScare.”
