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U.S. Supreme Court Takes Up Lethal Injection Case

As noted here and here last week, the U.S. Supreme Court declined, 5-4, to issue a stay of execution for Oklahoma murderer Charles Warner, who raped and murdered a baby. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

Charles Warner is to be executed tonight. He and three other Oklahoma death row inmates filed a petition for certiorari and an application for stays of their executions, contending that Oklahoma's lethal injection protocol violates the Eighth Amendment. I believe that petitioners have made the showing necessary to obtain a stay, and dissent from the Court's refusal to grant one.
Although it takes five votes to grant a stay, it only takes four to take up a case for full briefing and argument, and the Supreme Court today granted certiorari in the underlying case.  The case is No. 14-7955.  It is now titled Glossip, et al. v. Gross, et al., because Warner's case has reached the point of ultimate mootness.

Mark Sherman has this story for AP; Adam Liptak and Erik Eckholm cover it for the NYT.

Update:  Robert Barnes and Mark Berman have this story in the WaPo.

Last week's execution of Warner, who was put to death for raping and killing an 11-month-old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, "My body is on fire."
"As the process began" is significantly misleading.  As I noted previously, the actual observation by the television reporter was:

KFOR's Abby Broyles says before the three-drug cocktail was administered, Warner said, "It feels like acid," and "My body is on fire."
Big difference.  Warner's statement is not evidence that the drugs being used are painful and cruel.  It is evidence that inmates facing execution are being coached to fake it, and some of them are going along with it.


Q: What is real the explanation for the cert grant?

A: It only takes four votes.

Q: What can the Court add to the doctrine it adopted in Baze?

A: Nothing. The five votes for the state in that opinion are still there.

Q: So why is this a big deal?

A: Most likely, it isn't. It's just a chance for abolitionists and those in sympathy with them to showboat, which is exactly what's going to start happening.

I will want to see the cert-stage papers before I comment on the potential significance of this case. They are not up on SCOTUSblog as of this time.

I have a hard time seeing how this can be anything other than the application of settled law (Baze) to a particular set of facts (the Oklahoma execution protocol). Having been at the cert petition answering business for a number of years (while I was at DOJ), my experience is that the Court virtually never grants cert for that reason.

So what could be up?

Baze was decided by a plurality (Roberts, Kennedy and Alito) with Scalia and Thomas concurring, taking a view more favorable to the death penalty than the main opinion. All five of those votes are still on the Court, and Kennedy did not write separately at all.

It is possible for Justices to change their minds, but it happens very infrequently. Still less does it happen over only six or seven years. If anything, it would seem that the Court is slightly more favorable to capital punishment now than it was then, since Kagan has replaced Stevens, the only member of the Court who opposed the death penalty in all circumstances. In her confirmation hearing, Kagan disclaimed that position.

I think the handwriting is pretty clearly on the wall with the denial of a stay for the one execution, but the granting of cert now. The difference is five votes is needed for the former and only four for the latter.

Indeed, it's not clear to me that the anti-death penalty side will get either Breyer or Kagan, although it certainly might. Breyer concurred in Baze, and Kagan has no history of which I'm aware of ideological hostility to capital punishment.

The counter argument is that the four who voted for cert very likely think they have some shot at a fifth vote, and they are in a better position to know than I am, obviously.

But even if they get a fifth vote, it's unclear to me that it would be disadvantageous to the DP in the long run. Numerous times on this blog, it has been pointed out that the less problematic way of executing is either (1) nitrogen gas, or (2) a single drug. Assuming the state loses here, that will accelerate the trend, already somewhat underway, to move toward one of those two methods, both of which are superior.

Public support for the DP is essentially identical now to what it was when Baze was decided in 2008. I see this case as having little if any long term significance.

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