Members of the U.S. Supreme Court ventured far into the debate about the overall legality of the death penalty in a Monday (June 29) ruling that Oklahoma could continue with its process to carry out lethal injections. The 5-4 opinion in Glossip v. Gross should also move Arkansas forward with executions.
The genesis of the issue began when production of sodium thiopental or pentobarbital was limited or discontinued by drug companies. Some states, including Oklahoma, began using midazolam as part of a standard three-drug lethal injection process for death-row inmates.
Twenty-one (21) Oklahoma death-row inmates filed in June 2014 a lawsuit claiming that the use of midazolam violates the Eighth Amendment. They argued that midazolam does not do enough to cover the pain associated with the second and third drugs in the process.
Florida officials were the first in October 2013 to use midazolam instead of pentobarbital in the injection process. Oklahoma has used this three-drug process to execute Clayton Lockett in April 2014 and Charles Warner in January 2015.
With the ruling, Oklahoma Gov. Mary Fallin (R) said she has set in motion the process to set execution dates for Richard Glossip, John Marion Grant, and Benjamin Robert Cole.
“The Constitution is clearly not intended to prohibit the death penalty by lethal injection or the use of the sedative midazolam,” Fallin said in a statement. “I appreciate the Court’s ruling, which upholds the letter and the spirit of the law as it is written. My thanks go out to Attorney General Scott Pruitt, Solicitor General Patrick Wyrick and their legal team for aggressively and successfully representing the state on this issue.”
Arkansas Attorney General Leslie Rutledge said the Court’s ruling is an “important step” in allowing the state to move forward with pending executions.
“The U.S. Supreme Court today has once again ruled that capital punishment by lethal injection is constitutional. Today’s decision is an important step toward ensuring that executions can be carried out and that justice is served,” Rutledge said in a statement. “The Attorney General’s Office continues to handle ongoing litigation concerning Arkansas’s lethal injection statute, and I am confident the State will prevail in the end, allowing executions to resume.”
Rutledge said in late March that Arkansas has 32 inmates on death row with eight of those having exhausted all appeals. Arkansas has not had an execution since 2005.
The Arkansas Supreme Court ruled earlier this year that a process used by the Arkansas Department of Correction to select a chemical used in executions does not violate state law or separation of powers.
The Arkansas Supreme Court voted 4-3 in overturning a ruling by Pulaski County Circuit Judge Wendell Griffen that Act 139 of 2013 violated the state’s Constitution on the issue. In a 24-page ruling, Associate Justice Karen Baker said the law, passed by the Arkansas General Assembly, was legal.
U.S. SUPREME COURT DEBATE
In the 5-4 vote, Justices Samuel Alito, Anthony Kennedy, Chief Justice John Roberts, Antonin Scalia, and Clarence Thomas affirmed lower court rulings that the Oklahoma process did not violate the Constitutional rights of the inmates. Justices Stephen Breyer, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor dissented.
In his dissent, Breyer questioned whether the death penalty has a valid purpose.
“Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed. Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use,” Breyer noted in the overall 127-page ruling.
Breyer closed his dissent by saying the Court should “call for a full briefing on the basic question.” Sotomayor was more brutal in her dissent, saying that the majority opinion theoretically allows states 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.”
Alito said continual efforts to suggest the death penalty is a violation of Eighth Amendment rights continue to fail.
“Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes. Time and again, this Court has upheld that decision. And time and again, a vocal minority of this Court has insisted that things have ‘changed radically,’ and has sought to replace the judgments of the People with their own standards of decency,” Alito noted.
In his dissent with which he took time Monday to read from the bench, Scalia chastised Breyer’s opinion by saying it contained a “gobbledy-gook” argument that had nothing to do with the Constitution.
Writing in the SCOTUSblog, Amy Howe said the death penalty debate is not over.
“Today’s decision ends the legal debate over the use of midazolam and clears the way for states to use the sedative in future executions. It almost certainly does not end the broader public debate over lethal injections and executions, particularly if any of those future executions go awry. But – absent a change of personnel – don’t expect the Supreme Court to re-enter the fray anytime soon,” Howe wrote.