Wednesday, May 20, 2015

Glossip v. Gross and a Strained Definition of "Necessity"

by Sherry F. Colb

In my Verdict column for this week, I examine the case of Glossip v. Gross, in which the Supreme Court is considering the Eighth Amendment validity of Oklahoma's three-drug lethal injection protocol, given that midazolam, the drug intended to prevent consciousness during the otherewise-excruciating part of the process, may not be able reliably to maintain  the inmate's unconsciousness throughout the entirety of the execution process.  In the column, I focus on Justice Alito's apparent view that the protocol--which might yield pain comparable to that associated with being burned alive--is fine (in part because the unavailability of a more reliable unconsciousness-maintaining drug is a result of pressure on drug companies by death penalty opponents), but actually burning a prisoner alive would not be fine, even if a drug were administered to the prisoner beforehand that would guarantee unconsciousness and the absence of pain throughout the process.

In this post, I want to focus on the third question presented by the petition, which is whether the inmate who complains about the unreliability of the drug being used to induce and maintain unconsciousness is obligated to establish the availability of an alternative drug formula as a condition of succeeding in his Eighth Amendment complaint.  Michael Dorf in a blog post here very ably explored the oddity of penalizing a prisoner for something over which he has no control, the unavailability of more humane alternatives (a state of affairs that several Justices attribute to pressure by opponents of the death penalty brought to bear on drug companies).  In this post, I want to explore the unspoken premise of the Justices' frustration with the unavailability of acceptable alternatives, if they were to invalidate the use of midazolam: that executing prisoners who have been sentenced to death is necessary.

Here are Justice Alito's words on the subject of the unavailability of sodium thiopental, the more reliable drug (when administered properly):

Yes. I mean, let's be honest about what's going on here. Executions could be carried out         painlessly. There are many jurisdictions there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly.  Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty.  But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.  Now, what is your response to that?
In addition to the unclean hands argument that Professor Dorf highlights in his post, there is also the implicit assertion that so long as the death penalty is constitutionally valid (according to the very Justices considering the question), the states are entitled to carry out that penalty as best they can, even if it turns out that truly humane methods are unavailable for various reasons.  If I am understanding this implication correctly (subtracting, for the moment, the "you broke it, you buy it" feature of the argument), then it follows that the obligation of each state that executes prisoners is not so much to avoid subjecting prisoners to excruciating pain (which the midazolam protocol appears unlikely to reliably allow) as it is to avoid subjecting prisoners to "unnecessarily" excruciating pain. That is, if there is a feasible way of executing prisoners more humanely, then the cruelty of a method that a state uses may qualify as an Eighth Amendment violation.  However, if, given the current realities, a particular "cruel" method is the "least cruel" method available, then the method is, almost by definition, not unnecessarily cruel.

This reasoning may sound logical.  If one is going to execute people, after all, one ought to do so as humanely as one can, but what one "can" do is going to depend on what is actually available rather than on some theoretical painless method that is not in reality an option.  In the days before anesthesia, for example, a life-saving surgery on a patient would likely have caused unbearable and deeply traumatic pain, but the pain was necessary because--at the time--there was no way to do the surgery without inflicting the pain.

The difference, of course, is that we are using the word "unnecessarily" a bit differently in the two contexts, and there is a risk of slippage if we do not notice that.  In the case of the surgery, a person who was to undergo surgery was likely suffering from a condition that could end his life if not addressed surgically.  (In the days before anesthesia, I suspect few people would go in for purely elective operations).  The surgery itself, in other words, was necessary, and once we understand that to be true, then whatever pain is necessarily associated with that surgery is correspondingly necessary as well.  Absent the excruciating surgery, in the days before anesthesia, one would likely die of gangrene or whatever other serious ailment was motivating the surgery in the first place.

In the death penalty context, by contrast, it is harder to argue that the people sentenced to death simply must be executed, that their execution is "necessary" in the same way that surgery for a life-threatening ailment is necessary.  If the only way to execute someone at a given time is by administering drugs that will substantially risk causing excruciating pain (comparable to that of a prisoner being burned alive), then one can choose instead not to execute the prisoner at all (or not to execute him until a truly humane method becomes available).  Given the option of not executing him at all (which is a plausible option, relative to the corresponding option of not surgically removing a deadly growth from a patient in the years before anesthesia), it seems logical to conclude that the pain accompanying his execution with the available drugs does in fact amount to unnecessary pain, precisely because the entire execution is unnecessary.  To say this differently, pain that is a necessary or unavoidable part of performing an unnecessary act is best characterized as unnecessary pain.

The way in which some of the Justices seem to think about necessity is familiar from another context: the context of animals' suffering in the course of their preparation for use as food and clothing.  The law commonly prohibits the infliction of "unnecessary" suffering on animals (at least in narrow contexts), and by "unnecessary," it typically means that whatever method is being used to "raise" and slaughter the animals is necessary to the business of raising and slaughtering animals.  The suffering must be inherent in the process of utilizing living beings to create food or clothing rather than being completely pointless or gratuitous cruelty.

Few would deny that much of what happens to the animal beings who populate farms, whether "organic" or "factory," is painful to an extent that would qualify as "torture" if committed against a companion animal (at least outside of a laboratory setting, where they too may be subjected to excruciating pain).  Yet if one cannot create dairy, for example, without forcibly inseminating female cattle and then taking their babies away after birth as the mothers bellow in distress, then such practices are "necessary" because they are necessary to the production of dairy, despite the fact that the production of dairy is not itself necessary (and in fact carries with it numerous harmful effects on both human health and the environment).  And the same is true, for example, of the mass killing (by suffocation or grinding alive) of rooster chicks in the the egg industry:  this is an unavoidable and thus necessary part of creating chickens' eggs for people to consume, but it is not necessary for people to consume chickens' eggs.

Similarly, the slaughter process is far from painless (even for the narrow category of animals covered by the "Humane Methods of Slaughter Act") but instead is quite terrifying and torturous for the animals.  Yet, given the amount of demand for animal products, businesses can plausibly say that the amount of pain that the animals suffer is "necessary" to the production of animal foods and fiber. Yet again, though, since it is virtually never necessary for us to consume animal products, it is unclear why anyone should be satisfied with a state of affairs in which there is "no more torture than is necessary to the business of producing animal products."

That is simply another way of acknowledging that animal product production is inherently ("necessarily") extremely violent and cruel.  But since production of such products is itself unnecessary, then it follows that any pain and suffering experienced by the innocent, sentient beings held captive in such industries is unnecessary pain and suffering.  As a close friend of mine said it so well at a dinner we shared the other night, the reason we are vegan is that if we do not have to commit violence against animals--if violence against animals is itself unnecessary,--then why would we?

In the context of the death penalty, although I myself oppose capital punishment, I have discussed elsewhere that it is possible to distinguish the execution of guilty prisoners from animal slaughter on a number of grounds that would favor the former over the latter, including the fact that we strive to execute only guilty individuals (while we slaughter innocent animals en mass without even acknowledging their individuality) and the fact that we avoid executing prisoners with diminished capacities (while we rationalize the slaughter of animals in part on the very ground that they lack our special sophisticated "human" intellectual capacities).  I happen nonetheless to oppose the death penalty, but--unlike in the context of animal consumption--I think it relevant to attend to whether a particular method of execution is or is not humane.  And when a method is inhumane, when it causes a prisoner a great deal of suffering--an amount of suffering comparable to being burned alive from the inside, for instance--then that method should, in my view, be deemed a straightforward violation of the Eighth Amendment.  Because executing the prisoner is itself unnecessary, doing so in a manner that causes excruciating pain must ipso facto be unnecessary as well, even if it is the "best available method" at the moment.


Joe said...

This has shades of McCleskey v. Kemp, where one concern was that if the death penalty could not be applied because of risk of racial discrimination in that case, it might not be able to at all. Justice Stevens noted in dissent:

If society were indeed forced to choose between a racially discriminatory death penalty (one that provides heightened protection against murder "for whites only") and no death penalty at all, the choice mandated by the Constitution would be plain.

The "unnecessary pain" test is a real rule but the discussion here does show it is a somewhat nuanced one. If you think the death penalty is compelling, you might allow for some more risk to the prisoners. I think the matter is seen as largely academic to an Alito or Scalia though. I don't think they actually believe the risk is there here. Note Scalia denying a true threat of executing an innocent person.

But, there has to be some floor here, especially when we are talking about executing a tiny amount of people among the class of even heinous murderers. Finally, as Justice Sotomayor noted, there very well might be alternatives (firing squads or nitrogen gas) less painful which the state doesn't use for appearance reasons.

I do think the problems with the death penalty adds to the situation. Large scale, our prisons are one big violation to any honest accounting of the demands of 8A, including avoidance of unnecessary pain.

Eric C. Welch said...

Interesting article. I suspect that the search for a "humane" method of execution has more to do with the effects of that execution on the bystanders and those who have to administer it, than on the victim. We want to indulge in revenge without suffering from the horror it inflicts on us. We would prefer no blood or pain because it offends *our* sensibilities. We might be better returning to the guillotine. It would certainly be more honest.

Bad Wolf said...

Ive never understood a basic premise of this case. There are numerous chemicals that can knock a person out without pain. As the article stated we routinly conduct surgery on peple who dont feel anything.

Why dont they just knock an inamte out with those chemcals and then administer the deathly chemicls? Why are they administering anesthetics that may or may not knock you out?

(Forgive any misspellings, check isnt working and im too lazy)

Greg said...

I found both Prof. Colb's Verdict column and the first half of this post to be enlightening and, particularly in the case of the Verdict post, insightful views on the death penalty.

However, the gratuitous reference to animal slaughter in the second half of this post has actually caused me to re-evaluate my initial response to the first half. The end result of that evaluation is to be of an opinion more like Justice Sotomayor's, in that I might actually buy the argument that using the "most humane method available" is acceptable as a standard in administering the death penalty, I'm just not convinced that the three drug cocktail described here is that method.

The larger context that the second half exposed is that this isn't as simple as a necessary method to achieve an unnecessary goal. This is a necessary method to achieve a particular means of reaching a necessary goal. The goal being an ordered society through a criminal justice system. The means being the death penalty, and the method being the three-drug cocktail at issue in this case, vs other methods.

Since society has agreed that the death penalty is a reasonable means of achieving the necessary goal of law and order, and the courts have agreed that the death penalty is not cruel and unusual by itself, I see no reason that doing so through the most humane method available should be considered cruel and unusual.

To be clear, I continue to be convinced by Prof. Colb's Verdict column that the important point is cruelty to the one being punished, not to the person carrying out that punishment. In that sense I continue to disagree with Alito's reaction described there. However, I am no longer convinced that "most humane means possible" is an unreasonable standard when applied correctly.

Greg said...

Bad Wolf - the problem is that a number of drugs are unavailable for use in administering the death penalty because the manufacturers of those drugs refuse to sell them for use in that way. As a result, states have had to turn to (allegedly) less effective alternatives.

The dispute is whether the particular alternative is so ineffective in preventing pain that the pain resulting from administration of the other drugs becomes cruel and unusual.

Joe said...

I disagree that the discussion of animals is "gratuitous" though it does touch upon the wider argument.

Yes, like our consumption of animal products, the death penalty itself (particularly by use of lethal injection), is arguably not "necessary." The term is open-ended, so the discussion can be examined from various vantage points.

It is noted the public accepted the death penalty. It might have in the abstract, but push comes to shove, what did they "accept" there? The public repeatedly shows they are okay with delaying the d.p. if there is some chance of a problem. This situation very well might be that.

Like the public's acceptance of eating animal products, it is not "gratuitous" to look at the big picture here and determine if the execution of a few murderers (while leaving the rest in prison) is truly "necessary" if the alternative is this.

A person might decide this case on narrower grounds, but that is a separate matter.

Greg said...

Tangential probably would have been a better choice of word than gratuitous. I do understand the connection being made, I just find it unpersuasive, possibly even detrimental to the point being made about Glossip v. Gross.

In the sense of exposing that perhaps this isn't as straightforward as it seems at first, I found it a valuable tangent. However, I suspect what I took from it was the exact opposite of what Prof. Colb intended.

Ultimately, I think narrow grounds are the right way for the court to go here. This particular case should be decided based on the facts, and in view that, at the moment, alternatives do exist even if the state finds them distasteful. Firing squad and guillotine seem to represent the baseline for acceptable methods of execution. Only if those become unavailable as methods to administer the death penalty does it seem ripe for the court to revisit whether some less humane method would be automatically acceptable as the "most humane method," even if it is more cruel than these traditional methods.

Joe said...

Prof. Colb is willing to rest on narrow grounds, I'd think, but decided here to argue more broadly.

So, even before going into the animal comparison (she has done this in the past & personally was not really surprised by it), she argues the death penalty itself isn't necessary.

Peter Gerdes said...

I hardly think the amount of pain animals suffer is necessary. Many forms of narcotics (or other drugs that distract from pain) can be produced very cheaply at a large scale (especially if they don't need to be manufactured to human standards).

Of course, people don't like the idea of drugging cows. Probably because it feels if raising them for food while letting them suffer is less creepy.


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