In a recently decided Supreme Court case, Glossip v. Gross, the Court decided that a current method of lethal injection used for administering the death penalty is not so barbaric as to be unconstitutional. The only positive thing that can be said about this decision is that the powerful and well-reasoned dissents show just how wrong the majority holding is and give some hope to death penalty opponents.

First, a little background on the case: three Oklahoma prisoners sentenced to death row brought a claim arguing that the State’s method for lethal injection constitutes cruel and unusual punishment under the Eighth Amendment. After pharmaceutical companies, both here and in Europe, balked at supplying the more commonly used sedative that was crucial for anesthetizing prisoners during the lethal injection, a new drug cocktail went into use. A drug called midazolam is now used to (supposedly) render the condemned person unconscious so that other drugs can be administered to paralyze him and stop his heart. The problem with this newer protocol, however, is that midazolam cannot always keep the prisoner unconscious through the torturous, searing pain of the drugs that follow. Midazolam has not been approved by the FDA for use as an anesthesia, nor is it used by the medical profession as an anesthesia during major surgeries, and for good reason. The first time Oklahoma tried this new combination, the prisoner woke up part way through the execution, writhing in pain and complaining that the drugs were not working. It took 40 minutes for him to die. A 2014 Arizona execution using midzalam took nearly two hours, during which time the prisoner twitched and gasped in a way that suggested that he too was not unconscious.

The five justice majority of the Court held, however, that the condemned prisoners failed to establish that any risk of harm to them was substantial when compared to a known and available alternative method of execution. The Court also decided that, despite past mishaps, it was likely enough that midzalam would probably do the trick. Justice Sotomayor’s dissent ably argued the absurdity of the majority’s holding that even where the method of execution is intolerably painful— “the chemical equivalent of burning alive”— it cannot constitute unconstitutional cruel and unusual punishment unless there is a known and available alternative method of execution. As Justice Sotomayor points out, “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 [the alternative sedatives], the State could execute them using whatever means it designated.” The Eighth Amendment’s prohibition of cruel and unusual punishment should not permit this.

In a separate dissent, Justice Breyer (joined by Justice Ginsburg) asks for a full briefing on the question of whether the death penalty is unconstitutional under the Eighth Amendment as cruel and unusual punishment. This dissent makes four points:

  • Unreliability – the dissent points out numerous instances of both the wrongful execution of innocent people and the erroneous imposition of a death sentence on people who were later conclusively exonerated. The opinion cites between 115 and 154 exonerations in capital cases (depending on how you calculate). Any way you count it, it’s a stunning figure. The decision cites the tragic false conviction of Glenn Ford and 33 death sentences/9 executions where the conviction was based on a hair analysis method that the FBI has since admitted was junk science (both subjects of earlier blog posts).
  • Arbitrariness – for the death penalty to pass constitutional muster, it cannot be administered in a way that is arbitrary or erratic. It turns out, however, that the death penalty does not correlate with the egregiousness of the crime; it correlates to impermissible factors like the race of the victim, the race of the defendant, the gender of the defendant and victim, and geography (fewer than 1% of counties in the country account for about half of all death sentences imposed nationwide).
  • Slowness – most prisoners sentenced to death spend decades on death row prior to execution (or exoneration), isolated in solitary confinement. Much of the world agrees that such prolonged periods in solitary confinement constitutes torture. The lengthy stints in solitary confinement on death row run afoul of the “cruel” proscription of the Eighth Amendment.
  • Rarity – the Eighth Amendment bars punishments that are “unusual,” and the death penalty (thankfully) has become increasingly so. There are only 11 states that execute prisoners with any regularity, and Texas, Missouri, and Florida account for 80% of the executions in this country.


Over two thirds of the world’s countries have stopped using the death penalty, and it is time for the United States to conclude that the death penalty is unconstitutional under the Eighth Amendment. The flaws outlined by Justice Breyer drive that point home.


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