The two recent United States Supreme Court cases receiving the most attention
center around the Affordable Care Act and bans on same-sex marriage. However, there is a third case that should concern us all. In Glossip v. Gross1, the 5-to-4 decision fell in favor of using Midazolam as the first of a three-drug cocktail used for executing inmates.
The reasoning used to support the majority’s decision was based on the Petitioners’ (inmates’) failure to show that the methods used violated the 8th Amendment, which forbids cruel and unusual punishment. Specifically, the inmates failed to show that a preferable available alternative can be used by the executioner/state and that Midazolam is sure or very likely to result in needless suffering. Thomas concurred, but included facts from some of the inmates’ convictions to reemphasize that the Justices were considering the comfort levels of people who committed horrendous crimes.
Sotomayor’s dissent argued that the burden placed on the Petitioners’ was absurd because the type of execution (being drawn and quartered, burned at the stake, etc.) would not matter to the Majority due to the unavailability of Sodium Thiopental as a preferable alternative. The reason Sodium Thiopental is not available is because of a nationwide shortage2 due to the major manufacturer, Hospira, discontinuing production and the European Union banning the export of the drug for this purpose. Both a private corporation and a huge portion of Europe want no affiliation with our use of the death
penalty. As of today, we are part of an illustrious group that includes China, Iran, Lybia, and North Korea that still use the death penalty3. Whether the death penalty is cruel may be debatable, but whether it is unusual is not. The number of other countries that use the death penalty is proportionally tiny, which in and of itself, makes the death penalty unusual. Breyer’s dissent, beginning on page 51 of Footnote 1, focuses on three categorical explanations for the invalidity of the death penalty. He should live long in the memory for his outline of 1) the unreliability of the death penalty due to exonerations and the previous executions of the innocent, 2) the arbitrary application of the death penalty based at least partially on race, gender, political pressure, or geography, and 3) the unconscionably long delays in dehumanizing conditions also undermine the penological (deterrence, retribution, incapacitation, or rehabilitation) rationale of the death penalty. Most people I have spoken with who are in favor of the death penalty have a similar perspective to Justice Thomas’. Death row inmates are despicable people who, taking Thomas’ concurrence one step further, get too much consideration already. But as my Constitutional Law professor said during my first year of law school, “Bad facts make bad law.” This is certainly true of death penalty cases. The facts describing the horrific suffering crimes against victims and their surviving families overshadow the logic and morality against the death penalty. First and foremost, no one is advocating for probation or the release of inmates on death row. They will suffer for the rest of their lives in often deplorable conditions4 that defy the “three hots and a cot, cable TV” opinion many have about prison. Having visited jails and prisons throughout Florida, survival is not easy. Typically, the more serious crime a person is convicted of, the more dangerous facility he or she is held in.
Breyer’s dissent is much more comprehensive, but below is a summary of the logic and morality against the death penalty. For one, the death penalty is, by anyone’s definition, much more expensive than life imprisonment5. While Footnote 6 cites an anti-death penalty website, the numbers are taken from seemingly neutral sources like the FBI and U.S. Census and show that the death penalty is also not a deterrent6. Conversely, states with the death penalty have consistently higher murder rates. Then there is the retributive aspect. There are families of victims who have spoken against the death penalty because of its ineffectiveness in offering closure or for moral/religious reasons7. I personally witnessed something similar when I was an assistant public defender. I was new and handling simple cases like DUIs and thefts when the sentencing of Paul Merhige8 occurred. His attorneys and the prosecutors had agreed to 7 consecutive life sentences. Family members of the victims spoke at the sentencing and most were understandably furious with the prosecutors for not seeking the death penalty. But one man stood out. He is not mentioned in the linked article, but if I recall correctly, I believe his wife was murdered. I am paraphrasing, but he said that while he is not happy with the deal, he understands it. He said he is glad the defendant will never be free and he is glad that he will never have to relive that life-changing day or ever speak about the defendant’s actions again because the defendant will rot in prison. I hope that I never have to be in the situation that the victims’ families endure. I know that should anything happen to my family, my first instinct would be eye-for-an-eye justice. But do I want the government doing the deed for me? Do I trust that the government has the right person(s)? Should my instinct govern whether someone dies? Would I want to sit through endless appeals? Would I want to have to relive the pain? The answer to all of those questions is “No.” Most importantly, we should not and cannot base laws on individual situations, especially when the situations include horrific fact patterns. We should base laws on applying logic to the country as a whole. And logic shows that we, the United States, have killed innocent people9. Finally, killing the innocent is not only illogical, it is immoral. Presumably, everyone agrees with that position. The time is right for the United States to join its allies and neighbors in abolishing the death penalty.
Click Here to see the case decision.