The U.S. Supreme Court ended its term yesterday, handing down a decision that upholds the use of a controversial drug for lethal injection in executions. In recent years, the limited availability of substances used in lethal injection protocols – due to changes in the domestic production of these substances as well as tighter regulations in the European Union on the export of these substances – has posed a serious challenge for executing states in the U.S.
In Glossip v. Gross, the Supreme Court considered a challenge brought by a group of death-row inmates to the three-drug protocol that Oklahoma uses to execute prisoners. The inmates argued that the use of the first drug in the three-drug protocol, midazolam, violates the Constitution because it can’t reliably render the inmate unconscious. If an inmate isn’t unconscious when the second and third drugs are administered, the third drug will cause him to suffer serious pain, but no one will know because the second drug will prevent him from moving at all. Midazolam played a part in a handful of long and apparently painful executions just last year.
However, the Supreme Court declined to rule that any particular method of execution violates the Eighth Amendment’s prohibition on cruel and unusual punishment. Justice Samuel A. Alito Jr., joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, wrote for the majority in the 5-4 decision. The conservative Justices concluded that the inmates had failed to (1) identify an available and preferable method of execution and (2) make the case that the challenged drug entailed a substantial risk of severe pain.
The decision was marked by deep divisions, with the remaining Justices issuing two separate dissents. Justice Sonia Sotomayor wrote the main dissent, which was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan, taking on Justice Alito’s argument that petitioners have to point to a better and available alternative means of execution in order to prevail. Justice Breyer’s separate dissent, joined by Justice Ginsburg, goes further, suggesting that the death penalty itself is unconstitutional. Relying on evidence of execution of innocent people, frequent death row exonerations, arbitrary imposition of death sentences, and rampant racial discrimination within the capital justice system, Justice Bryer argued that “it is highly likely that the death penalty violates the Eighth Amendment”.
Notably (and predictably) absent from the Supreme Court’s opinions are any references to the U.S.’s obligations under international human rights law. The Committee Against Torture (CAT), which monitors the U.S.’s implementation of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, recently expressed “concern at reported cases of excruciating pain and prolonged suffering that procedural irregularities have caused condemned prisoners in the course of their execution”, pointing to cases of botched executions in Arizona, Oklahoma, and Ohio. The CAT also stated that continued delays in recourse procedures can, in certain cases, amount to torture according to the Convention. CAT, moreover, calls for a moratorium on executions and for the U.S. to sign on to the 1989 Second Optional Protocol to the International Covenant on Civil and Political Rights, which aims to abolish the death penalty.
As the rest of the world makes progress towards abolition (nearly two-thirds of countries around the world have abolished the death penalty in law or practice), the U.S. continues to lag behind, mired in the deep ideological fractures that frequently frame the death penalty debates taking place in this country. Maybe it’s time for the U.S. to adopt a new frame for these debates, one that puts human rights norms at its center.