Monday, May 04, 2015

Justices Alito and Scalia Liken Death Penalty Opponents to Terrorists

By Michael Dorf

During the oral argument last week in Glossip v. Gross, the SCOTUS considered the constitutionality of the death penalty drug protocol now used by Oklahoma, in which the first drug administered to the condemned is midazolam. Much of the discussion turned on technical matters about what was part of the record, the standard of review, etc. But not all of it. Robin Konrad, the lawyer for the petitioner, was essentially arguing that midazolam creates an unacceptable risk that the prisoner will be conscious and experience what amounts to the sensation of being burned alive for two hours or more.

Konrad's argument was partly absolute. Given the grisly facts we know, midazolam simply cannot be an acceptable method of execution. But her argument was mostly comparative: Midazolam is risky relative to other, safer drugs such as sodium thiopental. In light of the relative safety of sodium thiopental and other methods of execution, midazolam is unacceptable, she said.

Justice Alito then made an arresting point, which is worth quoting in full:
J. Alito: And why is Oklahoma not using sodium thiopental? Why is it not using that drug? . . . You don't know? . . . 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?
Konrad started an answer to the effect that the reason why sodium thiopental is unavailable is legally irrelvant but was soon interrupted by Justice Scalia, who continued:
J. Scalia:  . . . the States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs. And now you want to come before the Court and say, well, this third drug is not 100 percent sure. The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as -- as relevant to the decision that -- that you're putting before us?
Soon thereafter, Justice Kennedy asked Konrad to answer the question put by Justice Alito and repeated by Justice Scalia. Eventually, Justice Sotomayor noted that sodium thiopental isn't the only alternative. She suggested that gassing prisoners would produce a painless death and later a firing squad was suggested as yet another alternative that carried a smaller risk of torturing the condemned than midazolam does. Then the argument moved on to other points.

Nonetheless, I want to linger on the point raised by Justices Alito and Scalia. They apparently accepted, at least arguendo, that the Eighth Amendment imposes an obligation on a state that has the death penalty to minimize the suffering caused by the process of execution and that, therefore the state must use the safest method of execution that is reasonably available. However, because of the role that they see death penalty opponents in making sodium thiopental unavailable, they reject sodium thiopental as a fair comparator for midazolam.

In some sense, this is a fairly straightforward estoppel or unclean hands argument of the sort one sees throughout the law. A party who commits a wrong should not benefit from that wrong. Thus, to give a famous example from the 1889 New York Court of Appeals case of Riggs v. Palmer, a grandson who murders his grandfather is estopped from inheriting from the grandfather's estate.

But there is an obvious difference between the standard estoppel/unclean hands approach and the argument made by Justices Alito and Scalia in Glossip. In the ordinary case, the party to be estopped has the unclean hands. Here, by contrast, the Glossip petitioners are not responsible for the sodium thiopental shortage. The shortage is due to a global campaign by opponents of the death penalty, spearheaded by the government of Italy. Holding the Glossip petitioners responsible for the sodium thiopental shortage would be like forbidding anyone from inheriting the grandfather's estate, not just the murdering grandson Elmer.

To be sure, the Glossip petitioners are guilty of murder, so in a sense they do have very unclean hands. But not in the relevant sense. If being guilty of murder were sufficient to estop one from objecting to a method of execution, then no one would ever be able to object to a method of his execution. The case only proceeds on the assumption that some methods of execution are unconstitutional even for murderers who have been validly sentenced to death. Thus, the salient unclean hands question is whether the Glossip petitioners themselves created the sodium thiopental shortage, and they obviously did not.

Of course, estoppel sometimes operates against a client on the basis of the client's lawyer's actions. But at least in those cases, the actions that give rise to the estoppel were ostensibly taken as part of an agency relationship in the specific service of the particular client. Here, death penalty opponents were undoubtedly hoping to benefit the Glossip petitioners as well as the thousands of other death row inmates in the U.S. However, there was no agency relationship.

Thus, for the argument of Justices Alito and Scalia to work, we need a different analogy, and indeed Justice Alito provides one. Sodium thiopental should not be deemed an available alternative to midazolam, he says, because to do so would "countenance . . . guerrilla war against the death penalty." The argument looks a lot like a government's decision not to pay ransom to hostage takers because doing so only gives them an incentive to take more hostages. Yes, it's tragic that the hostages are sacrificed, but doing so saves more lives in the long run.

So too here, Justices Alito and Scalia seem to be saying that if Glossip and other petitioners must be slowly burned to death (Justice Kagan's characterization), that's unfortunate, but necessary to prevent the terrorists, i.e., the death penalty opponents, from continuing in their hostage-taking.

I could now explain all of the disanalogies between actual terrorists capturing and killing hostages, on one hand, and, on the other hand, death penalty opponents engaging in nonviolent protest through measures like boycotting products made by the makers of sodium thiopental. But instead I'll just let the analogy speak for itself as to what Justices Alito and Scalia think about death penalty opponents. Just note that I am not being hyperbolic in my analysis of their argument. Calling the tactics of death penalty opponents "guerrillas," as Justice Alito does, almost literally makes the terrorism analogy.


Joe said...

This reminds me of Justice Stevens in another death penalty case involving race discrimination:

The Court's decision appears to be based on a fear that the acceptance of McCleskey's claim would sound the death knell for capital punishment in Georgia. 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. Eddings v. Oklahoma, supra. But the Court's fear is unfounded.

Alito/Scalia at best provide an argument the states' hands are less unclean than some because they apparently rather not use this drug, but feel forced to do so because of shortages. But, either way, there is a 8A floor.

Anyway, I question in the long run if they really can't find a source of these drugs. Also, as Sotomayor noted, there are alternatives (firing squad, nitrogen gas) though the states (and the people) might not like them for other reasons. Also, even if the Supreme Court disposes of this on the facts, this issue probably won't go way with compounding pharmacy issues, secrecy etc.

Given the problems with the drugs, including the medical ethics issues, more states might be ready to shift to nitrogen gas. Also, Sotomayor calling the states liars was dramatic listening.

Dan Baker-Jones said...

I find it interesting that Alito/Scalia would make such an argument here, but most certainly would not countenance such an argument in the context of abortion restrictions (i.e, where the state claims that it "isn't restricting abortions, but making them safer").

Greg said...

Sodium Thiopental isn't patent protected, so there's technically nothing preventing a state from hiring a few chemists to manufacture their own preferred drug, is there?

At that point, "cost" becomes one of the issues that the states are using to argue for their new "preferred" choice.

Also, as noted by many, firing squad is both cheap and is at least for purposes of this case indisputably legal. It may be undesirable for other reasons.

But now we're getting into a balancing act on behalf of the state, not an argument that the states are truly out of options.

Joe said...

When this is discussed, including at Sentencing Law and Policy blog, Greg's comment about the state doing it themselves was something i thought as well.

Maybe there is a reason that is not so easy but this whole thing adds my overall belief that we might accept the death penalty in this country, but it often is fairly "soft" and a range of things can delay it except perhaps in a few states that are particularly serious about it.

Unknown said...

When I read the description of Scalia's and Alito's questions, my first thought was that they were childish and petulant, what one might expect of perhaps a very new traffic court judge.

A sidewalk philosopher said...

How on earth did it go from guerrilla war to hostage taking and terrorism? That's quite a leap.

Is this something the justices did, but wasn't quoted in the article?

Unknown said...

Justice Alito speaks of "those who oppose the death penalty", and Justice Scalia speaks of "the abolitionists". I think that both of these Justices are assuming that the Glossip petitioners oppose the death penalty and consider themselves death penalty abolitionists. It follows that the petitioners are part of the movement that is making sodium thiopental unavailable, and consequently that they should not benefit (for reasons of estoppel) from its unavailability.

You distinguish between the petitioners and the abolitionist movement. But it is not clear that the former are not members of the latter.

The more important point, I think, is that estoppel doesn't matter.

Suppose that I, a convicted murderer, could, by snapping my fingers, destroy all drugs that could kill me painlessly. So suppose I destroy all the drugs by snapping my fingers. It doesn't follow that the State is permitted to kill me in a way that contravenes the US Constitution. Since when does the (common law) principle of estoppel overcome an explicit constitutional requirement?

andy grewal said...

A popular job-hunting book among my law students is "Guerrilla Tactics for Getting the Legal Job of Your Dreams." I'm now very concerned that my students are, "almost literally," beheading people in the name of Allah to land a law firm job.

Asher said...

Thanks for reminding me of that book, Prof. Grewal. I don't see the comparison to terrorists either. Anyway, I think Scalia and Alito see these cases as part of a multi-front litigation strategy, which involves depriving states of effective anesthetics and then complaining about the efficacy of what's left. If that's factually correct, which seems dubious, then the estoppel argument outlined above makes some sense.

Michael C. Dorf said...

Andy's undoubtedly right, because I clearly said that any use of the word "guerrilla" is almost literally meant by the speaker and understood by the listener to mean terrorism. That's why all I did was quote that one line in my one-sentence-long blog post.

Asher said...

Back to estoppel, the following hypo occurred to me. Let's say that a liberal Justice believes that the conservative public-interest lawyers who litigate affirmative action cases had a long-term litigation strategy of first arguing that any racial bias in college admissions has to work in a very holistic and nuanced way, and then arguing that holistic plus-factors are necessarily not narrowly tailored because they don't do much and race-neutral alternatives could achieve just or nearly as much diversity. (Arguments of the latter kind were actually made in Fisher.) Now, counsel for Affirmative Action Plaintiff Joe- who of course wasn't a party in the cases where the Court started requiring holistic plus-factors, and whose lawyer himself, let's suppose, wasn't counsel of record in Grutter and Gratz - is before the Court. And this liberal Justice asks Joe's counsel how anti-affirmative-action litigators, broadly speaking, can attack holistic pluses on tailoring grounds when they were responsible for getting the Court to require holistic pluses in the first place, instead of more effective quotas for which there could be no equally effective race-neutral alternatives. And he refers to their strategy as a guerrilla war on affirmative action. Should anyone find that question offensive? In fact, wouldn't guerrilla warfare be a pretty fair description of the litigation strategy that Justice (rightly or wrongly) perceives anti-AA-litigators to be employing? And is there not even some force to his argument?

Jim said...

Apart from Alito's complaint about "guerrilla war," I was struck by Alito's and Scalia's hand-wringing that companies might, as a matter of conscience, decide not to sell their products to states for use in administering the death penalty. So, when Hobby Lobby refuses to pay for employee insurance coverage that includes contraception, that is a noble exercise of the company's constitutionally protected freedom of religion. But when a company exercises its free-market power not to sell its product for a use it deems objectionable, it's participating in a "guerrilla war" against the death penalty.

The only thing that could more powerfully illustrate the hypocrisy here is if a high-ranking official at a company that is refusing to sell the sodium thiopental were to state that the company is doing so in accordance with the teachings of the Catholic church against the death penalty.

tjchiang said...

Mike, I assume your response to Andy was sarcastic, and if so, I think it is a weak response. True, you did not "clearly" say that any use of the word "guerrilla" refers to terrorism and beheadings. But then Justice Alito did not clearly use "guerrilla" to mean terrorism and beheadings and all that either. The more charitable interpretation of Justice Alito's comment is that he is using guerrilla to mean "unconventional." The hallmark of a guerrilla campaign isn't that the perpetrator kidnaps hostages and beheads them; it is that the perpetrator, having lost (or knowing it would lose) in a direct confrontation, fights using non-standard tactics that the recipient regards as ungentlemanly. Similarly, in Justice Alito's eyes, the abolitionists, having lost in what Justice Alito regards as the conventional democratic and judicial process (at least in the US), are now resorting to tactics that Justice Alito regards as illegitimate to achieve the same ends. Thus read, the point is a simple incentives point: allowing what you regard as illegitimate tactics to work provides an incentive for those tactics in the future. Nothing about terrorism is strictly needed to be imputed to any of Alito's questions.

To the extent you are faulting Andy for immediately jumping to the most uncharitable reading of your argument; I think the same came be said to apply to your characterization of Alito.

Kerkira said...

I'm glad to see that someone is writing about this, though my focus would be on the word 'countenance' and judicial activism. If entities not affiliated with the petitioner acted lawfully to make the other drugs unavailable, what business is that to this Court? Other cases surely come before the Court with circumstances partially formed by entities who are not parties to the case, and whether to countenance them or not doesn't even enter into the question.

Even if the Court rules in favor of using midazolam for executions, they apparently will have to countenance the fact that Akorn, the drug's manufacturer, will no longer supply it to prisons, and has asked for Oklahoma to return any remaining supplies:

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