Constitution Check: Is the Supreme Court going to rule out lethal-drug executions?

Lyle Denniston, the National Constitution Center adviser on constitutional literacy, looks at the challenging and complicated decision facing the Supreme Court about lethal injections and the Eighth Amendment.

THE STATEMENTS AT ISSUE:

“This is very big. They may focus just on what Oklahoma is doing, but it will set a standard for every state. It’s going to put a stamp on what’s allowable and what’s not.”

– Richard Dieter, executive director of the Death Penalty Information Center, a group that advocates abolition of capital punishment, in a statement quoted by NBC News on January 23 after the Supreme Court agreed to hear a challenge to Oklahoma’s lethal-drug injection protocol.

"The time is right for the court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drug protocols.”

– Dale A. Baich, an assistant federal public defender in Phoenix, a member of the team of lawyers representing three Oklahoma death-row inmates in the Supreme Court case, in a statement quoted by NBC News on January 23.

WE CHECKED THE CONSTITUTION, AND…

The Constitution’s Eighth Amendment forbids “cruel and unusual punishment,” but the Supreme Court has never taken the advice – given from time to time by some of its own members, as well as by a long-running abolition movement – to interpret that phrase to strike down the death penalty. Among the nine Justices now sitting, there is no longer even one who has argued publicly for outlawing that form of punishment, although there are clearly some skeptics on that bench.

In one of the most puzzling series of circumstances, the Supreme Court in recent days has had real difficulty making up its mind about what to do about the death penalty in a state that has carried out one of the most grievously botched executions in history – the state of Oklahoma. The court, like the nation as a whole, was aware of the prolonged and obvious agony of inmate Clayton Derrell Lockett last April, as prison officials in that state tried a variety of quite clumsy means to bring about his death, which did not occur until nearly three-quarters of an hour had elapsed.

Still, on January 15, the Supreme Court allowed Oklahoma to carry out another execution using the same first drug in a three-judge protocol that had not worked to cause Lockett to go into a deep enough sleep to permit his execution to be carried out in a comparatively humane way. It took five votes on the court to decide against a postponement.

Eight days later, however, the court agreed to review Oklahoma’s use of that sedative drug, midazolam, with the central question being whether such a protocol is forbidden by the Eighth Amendment. It took a minimum of four votes among the Justices to do that.

That the court had allowed one inmate to be put to death, in a process that the court would soon decide to subject to a constitutional test, created a mystery that may not be cleared up perhaps until the court takes final action – probably later this year -- on the case of Glossip v. Gross. That was the very same case in which four inmates had sought to postpone their executions in Oklahoma, only to fail and then have one of their fellow death-row occupants, Charles Warner, put to death.

Without knowing what the Justices said internally to each other over that eight-day span, no one outside the court can even guess confidently about what the Justices intend to do with this new constitutional controversy over the Eighth Amendment.

In the end, the court might decide in a sweeping way that the one real justification for execution by lethal drugs – that it is the only approximately humane way to execute a prisoner – is no longer a dependable reality, so that method would have to be abandoned. That is not a likely prospect; when the court last ruled on the use of lethal drugs as an execution method, in 2008, it found no Eighth Amendment problem. The membership of the court has not changed a lot since then.

The court also seems unlikely to suggest, even by implication, that there ought to be a nationwide moratorium on lethal-drug executions. The Oklahoma case, whatever chances it might have for producing a major decision, clearly does not call for an answer, either way, on the question of a moratorium.

What the court does in coming days, when it is asked to block lethal-drug executions that are now scheduled in other states using protocols different from Oklahoma’s, may tell a good deal about how expansively the Justices are thinking about that mode of capital punishment.

If the court does not rule broadly, it could decide the Oklahoma case quite narrowly, by simply analyzing whether the use of a sedative instead of an anesthetic to try to bring about a deep unconsciousness for the condemned prisoner is dependable enough to avoid turning the execution into a gruesome spectacle.

That would be difficult for the court, as an institution that works through a process of legal reasoning, because this may in fact be a question of science and medicine. What, exactly, are the properties of a drug that a state may seek to use in combination with other drugs to kill a human being?   What kind of experts in pharmacology or anatomy can be trusted to give dependable answers? The Oklahoma case itself featured testimony from dueling experts, and that left a good deal of uncertainty about who was right or closest to scientific reality.

If the scientific and medical puzzles were not complex enough, the constitutional questions are far from easy to sort out. What is “cruel” and what is “unusual” when a state decides intentionally to take a human life, even when it is doing so in response to horrific crimes by the condemned individual? That analysis has never been easy for the court, and the recent problems in carrying out lethal-drug executions have shown that this alternative is not necessarily the answer to what the Eighth Amendment does or should demand.

Between now and the day when the court decides the Oklahoma case, if that case goes all the way to a decision instead of being phased out because of different procedures that Oklahoma officials are already considering and may adopt, the Justices will get a lot of advice on how they should rule.   In the end, though, it will be a challenging choice for just the nine of them, the only ones who hold the power to decide.