It's been a busy day in the wake of Glossip. The case has drawn a lot of media attention. We will have some links to coverage tomorrow.
Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.
SCOTUSblog is having a symposium on the case. The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.
I have sent in my entry. I will post the last section after the break.I'll have a link to the The full post when it is available on SCOTUSblog.
Update: The posts by Deborah Denno and Stephen Schwinn are available now. They are not happy campers.
Tomorrow I will be on a teleforum with the Federalist Society at 2:00 p.m. ET.
SCOTUSblog is having a symposium on the case. The first post to be published is by Alabama SG Andrew Brasher, a co-amicus on our side of the case.
I have sent in my entry. I will post the last section after the break.
Update: The posts by Deborah Denno and Stephen Schwinn are available now. They are not happy campers.
Unable to get either pentobarbital or thiopental, Florida and Oklahoma adopted an alternative method of using three drugs, like the method at issue in Baze, but substituting midazolam as the first drug. Midazolam (the generic version of the name-brand drug Versed) is from a different class of drugs. This drug is used to induce anesthesia, but it is not generally considered to be a good choice to use alone for procedures that would be extremely painful such as major surgery. It is used alone for invasive but less painful procedures such as colonoscopy. Midazolam has a "ceiling effect," meaning there is a dose beyond which increased dosage has no further effect. The District Court in Oklahoma heard conflicting testimony about whether a massive dose of midazolam such as is used in this protocol would keep the inmate "insensate to pain" as the second and third drugs were injected.
Justice Alito's opinion for the Court in Glossip treats the plurality opinion in Baze as the definitive word, as the lower courts universally have. Justice Sotomayor, in dissent, disputes whether it should be so treated, an interesting topic all by itself.
With that point resolved, the absence of an alternative becomes sufficient to dispose of the case by itself. Thiopental and pentobarbital, which everyone agrees would be preferable if available, are not available thanks to the pressures applied by the anti-death-penalty activists and by European governments. It is sufficient to reject the challenge to the method that the challengers failed "to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available method of execution."
For those whose real goal is to halt all executions and who are merely using the pain argument as a front, this holding is a major blow. A requirement that the challenger show that an alternative method is not only superior but available means that it would virtually never be proper for a federal court to halt executions completely in a state as opposed to ordering that one method rather than another be used. Indeed, although the Court did not need to reach it in Glossip, there is a strong jurisdictional argument that a court sitting in a ยง1983 civil rights case has no jurisdiction to issue an order that prevents execution of the judgment altogether.
The second issue in the case is a fact-based one regarding midazolam, and here the Supreme Court's opinion is less definitive. The Court held that the District Court's factual finding that "midazolam is highly unlikely to render a person unable to feel pain during an execution" was not clearly erroneous. In another trial before another judge with different evidence, the outcome could be different.
Does the requirement to show an available alternative method apply across the board to any method of execution challenge? That point is the subject of an exceptionally testy exchange. Justice Sotomayor contends the majority has authorized drawing and quartering or burning at the stake if no alternative is available. The majority says, "That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."
But why is it not true? In my view, the requirement to show an alternative arises under Baze when the claim is made that a method of execution is not one adopted with the intent or the knowledge that it will cause severe pain but rather that the method is one that merely carries an unacceptable risk of severe pain. That would be consistent with the intent/risk distinction in the prison conditions cases from which the Baze plurality drew its test.
The Court may never resolve this question, though, because it is unlikely to ever need to resolve it. No American state is going to knowingly adopt an extremely painful method of execution. The states that retain the death penalty will continue to seek and apply the least painful methods available.
The real fight here is between those who want to see these long-overdue judgments carried out and those who seek an excuse to obstruct their execution. The latter's ability to obstruct took a big hit today.
Justice Alito's opinion for the Court in Glossip treats the plurality opinion in Baze as the definitive word, as the lower courts universally have. Justice Sotomayor, in dissent, disputes whether it should be so treated, an interesting topic all by itself.
With that point resolved, the absence of an alternative becomes sufficient to dispose of the case by itself. Thiopental and pentobarbital, which everyone agrees would be preferable if available, are not available thanks to the pressures applied by the anti-death-penalty activists and by European governments. It is sufficient to reject the challenge to the method that the challengers failed "to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available method of execution."
For those whose real goal is to halt all executions and who are merely using the pain argument as a front, this holding is a major blow. A requirement that the challenger show that an alternative method is not only superior but available means that it would virtually never be proper for a federal court to halt executions completely in a state as opposed to ordering that one method rather than another be used. Indeed, although the Court did not need to reach it in Glossip, there is a strong jurisdictional argument that a court sitting in a ยง1983 civil rights case has no jurisdiction to issue an order that prevents execution of the judgment altogether.
The second issue in the case is a fact-based one regarding midazolam, and here the Supreme Court's opinion is less definitive. The Court held that the District Court's factual finding that "midazolam is highly unlikely to render a person unable to feel pain during an execution" was not clearly erroneous. In another trial before another judge with different evidence, the outcome could be different.
Does the requirement to show an available alternative method apply across the board to any method of execution challenge? That point is the subject of an exceptionally testy exchange. Justice Sotomayor contends the majority has authorized drawing and quartering or burning at the stake if no alternative is available. The majority says, "That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."
But why is it not true? In my view, the requirement to show an alternative arises under Baze when the claim is made that a method of execution is not one adopted with the intent or the knowledge that it will cause severe pain but rather that the method is one that merely carries an unacceptable risk of severe pain. That would be consistent with the intent/risk distinction in the prison conditions cases from which the Baze plurality drew its test.
The Court may never resolve this question, though, because it is unlikely to ever need to resolve it. No American state is going to knowingly adopt an extremely painful method of execution. The states that retain the death penalty will continue to seek and apply the least painful methods available.
The real fight here is between those who want to see these long-overdue judgments carried out and those who seek an excuse to obstruct their execution. The latter's ability to obstruct took a big hit today.
One may reasonably debate the question whether abolitionists in litigation of this kind should be required to designate a preferable alternative. But one cannot reasonably debate the justice of abolitionism's defeat in its cynical attempt to eliminate the death penalty by the expedient of making better execution drugs unavailable.
Abolitionists claim to be acting on principle, but they walk right past the principle that, in a constitutional democracy, the people (first) and the courts (second) get to decide whether we are going to have the death penalty -- not the amount of pressure (which some might call soft core extortion) the abolitionist movement can apply to drug companies.