The Supremes Wax Hypothetical On Executions, May End Up Moot

Yesterday the Supreme Court heard arguments in Glossip v. Gross, a case brought by condemned men in Oklahoma objecting to its method of capital punishment.  The argument in this case hinges on the state’s use of midazolam as the sedative in the three-drug cocktail of anesthestic, paralytic and a drug to stop the heart.  Death penalty opponents argue that the drug does not adequately sedate the condemned inmate, allowing them to suffer sufficient pain from the subsequent drugs to qualify as cruel and unusual punishment.

While it is rarely a guarantee that oral arguments indicate exactly how the justices will rule, it can be suggestive.  Reports from the Court indicate that the justices questions focused primarily on two threads.  The liberal justices were concerned about the effects of midazolam, while four of the conservative justices focused on what they consider a judicial end around.  As I’ve tracked on this blog, manufacturers and others have put drugs used in executions out of reach of states, forcing them to choose alternative drugs, and in some cases expand their execution options.

The justices’ questions about these tactics suggest they are upset at their decisions (about the Constitutionality of the death penalty) being subverted by what could be seen as technical, rather than political, means.  While I’d argue that the campaign to get execution drugs pulled is definitely political, I can see where the justices that support the death penalty see this effort as a turf battle.

Again, the oral arguments are more of a guide than a predictor of the court’s vote (much less the specifics of its opinions).  But it would seem that this case is unlikely to change the status of the death penalty.  And while some justices object to the movement to make certain drugs inaccessible for executions, there is little they can do.  In March an Illinois manufacturer of midazolam requested the State of Oklahoma return its supply of the drug (for a refund, of course).  The company, Akron Pharmaceuticals, will also take steps to make sure its supplies of midazolam and hydromorphone (a narcotic pain reliever some states have expressed interest in using) cannot be used for executions.  Similar letters have been sent to other states.  Should other manufacturers follow suit, it may not matter what the Court says when it rules in this case.


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