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.