Death penalty debate smolders after Supreme Court decision

WASHINGTON — The Supreme Court on Monday ruled in a 5-4 decision that the use of a controversial legal injection drug is not a violation of the Constitution’s prohibition on cruel and unusual punishment.

But death penalty experts and analysts said that the ruling does little to quash the ongoing national reconsideration of capital punishment and that the dissent of the four justices in the minority signals that broader questions are being raised about the wisdom of state-sanctioned executions.

The decision, in Glossip v. Gross, with a majority opinion written by Justice Antonin Scalia, held that the petitioners in the case — four death row inmates in Oklahoma — did not prove the execution protocol involving the drug midazolam “entails a substantial risk of severe pain.” He added that the petitioners failed to identify a known and available alternative, the standard set by a 2008 Supreme Court case on lethal injection drugs.

In their strongly worded dissent, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, gave a broader, more pointed critique of the death penalty, noting its deficiencies and propensity for errors.  

“Rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution,” Breyer wrote. “I believe it highly likely that the death penalty violates the Eighth Amendment.”

Austin Sarat, a political science professor at Amherst College and an expert on the death penalty, said Breyer’s dissent will likely be the foundation for the court to ultimately strike down capital punishment as the public continues to sour on the death penalty and fewer states employ it.

“It’s very clear that the death penalty is in trouble in the United States, and this decision is not going to quell that trouble,” he said. “Justice Breyer’s opinion was the majority opinion waiting to happen. It will provide the basis for the United States to stop the death penalty in later years.”

In 2014 only 35 executions were carried out in the United States in seven states — a 20-year low, according to the Death Penalty Information Center, a nonprofit based in Washington, D.C. The organization pointed to the diminishing use of capital punishment amid concerns of false convictions and lengthy delays in carrying out the sentence. That year juries handed down only 72 death sentences, a 40-year low.  

Among the public, support for the death penalty has fallen in recent years, although a majority of Americans surveyed — 53 percent — said they support capital punishment, according to an April poll by the Pew Research Center.

Moreover, in the midst of a lethal injection drug shortage, with pharmaceutical companies refusing to sell components of the traditional three-drug cocktail to states on moral grounds, a number of states performed botched executions last year as they experimented with new protocols.

The Glossip v. Gross decision was precipitated in part by the gruesome 2014 execution of Oklahoma inmate Clayton Lockett, who was seen writhing in pain and gasping for air on the gurney for 40 minutes after the drugs, including the contested midazolam, were administered.

Such problems are likely to continue, said Richard Dieter, the executive director of the Death Penalty Information Center. Circumstances may not be perfectly ripe yet for a national ban, but the nation seems to be moving in that direction.

“The court narrowly allowed executions to continue in Oklahoma and Florida, but it also planted a flag about the broader death penalty debate,” he said. “Clearly there are problems with the death penalty itself — maybe not enough for it to be struck down for all states for all time right now.”

Some states, seeing the problems that arise with capital punishment, have moved to abolish the practice legislatively, most notably Republican-controlled Nebraska, which this year became the first conservative state to end capital punishment in 40 years.