by Sherry F. Colb
For my column this week on Verdict, I discuss some of the reasons that people on both sides of the abortion issue would be outraged if an abortion provider were able to profit from the sale of fetal body parts and tissues. The discussion stems from the undercover footage of conversations at Planned Parenthood in which officials there discussed what actually appeared to be the reimbursement of expenses associated with donations of fetal parts rather than the payment of cash for fetuses. The column takes up the issues of both incentivizing abortion and organ sale as well as the commodification associated with selling someone's parts for cash.
In this post, I want to turn to a very different subject, the subject of executions and the Supreme Court's decision in Glossip v. Gross. There are connections one could draw between an entitlement to dignity (which helps explain the stigma attached to selling fetal organs for a profit) and the methods of execution that either succeed or fail an analysis under the Eighth Amendment prohibition against cruel and unusual punishments. Whether it is our dignity as the people ultimately responsible for the fate of the condemned prisoner or whether it is the inherent dignity of the prisoner, no matter how heinous his conduct, there are limits (constitutional and moral) on what we may do to him as a punishment for his crime.
Yet I wish to raise a distinct point about the death penalty and the Eighth Amendment, as manifested in Glossip, one that has less to do with dignity than it does with a peculiar understanding of the death penalty that the Supreme Court endorses in that decision.
Though I have discussed Glossip in other contexts, here and here, something struck me about the decision that I believe is worth a mention. Briefly, the case is about the first drug administered in lethal injection--the protective drug that is supposed to prevent the prisoner from experiencing the torture that would otherwise ensue upon administration of the second and third drugs (respectively, a paralytic that paralyzes the lungs, and a drug that induces cardiac arrest). In Glossip, that first drug is midazolam, an anti-anxiety drug that is ordinarily not indicated for extended anesthesia, and the petitioner raises serious questions about the potential inefficacy of this drug in the face of extremely aversive stimuli such as the second and third drugs in the protocol.
The Supreme Court holds that for two reasons, the petitioner's challenge fails. First, the Court is unconvinced that petitioner could show a likelihood that the use of midazolam as the first drug in the lethal injection protocol creates a demonstrated risk of severe pain, part of making out a successful "method of execution" Eighth Amendment challenge. Though arguably dead wrong, this first reason is structurally unsurprising. One expects that part of evaluating the Eighth Amendment validity of a method of execution will include a consideration of whether the challenged method risks severe pain.
The second reason that the Court articulates is, however, very surprising. The Court says that petitioner failed to identify a known and available method of execution that carries a substantially less severe risk of pain than the method on offer. In other words, it is up to the prisoner challenging a particular method of execution as cruel and unusual punishment to identify another method of execution that would be much better (along the humane dimension), that is known, and that is available. This formulation sounds a lot like strict scrutiny.
Strict scrutiny is the test to which we subject regulations that infringe upon the exercise of fundamental rights (or that discriminate on the basis of suspect classifications). If a law, for example, infringes upon the right to marry, then it must be justified by a compelling interest and the infringement must be narrowly tailored to furthering that interest. Another way of describing this "strict scrutiny" test is to say that it demands that the government utilize the least restrictive alternative necessary to serving its compelling interest. If it infringes upon a fundamental right in a manner that could be replaced with something less restrictive, then it fails strict scrutiny.
This very demanding test applies only to governmental infringements on private individual rights (such as freedom of speech, the right to contraception, the right to procreate, or the right to marry). It has no application (as a matter of constitutional validity) to infringements of the authority of the government to carry out its objectives. Therefore, it is not appropriate, when confronting a claim that a method of execution is cruel and unusual punishment and violates the Eight Amendment, to respond that the petitioner making the claim can succeed only if he can preserve the government's "right" to execute the prisoner by coming up with a less restrictive approach than what would amount to a prohibition against executing a prisoner who has been sentenced to death. Applying such a test has the bizarre implication that it is not enough for an Eighth Amendment petitioner on death row to prove that he is likely to suffer excruciating pain if executed by the planned protocol. He must also identify a different method by which the government can go ahead and execute him (while still serving the presumably "compelling interest" in avoiding a cruel and unusual method of execution).
We might call this mode of strict scrutiny "heightened" strict scrutiny because ordinarily, one can prevail in such a challenge (against a government regulation) if there is no less restrictive way to fulfill the compelling interest than the relief sought by the petitioner. In Glossip, however, if there is no less restrictive alternative method of executing the prisoner that is less risky, known, and available, then the the challenge fails. Thus the "right" of the state to execute the prisoner trumps the Eighth Amendment "compelling interest" of the prisoner in avoiding a cruel and unusual punishment, such that in the absence of an alternative, the execution goes forward, notwithstanding an unacceptable risk of grave pain.
The way in which the Court frames this case is disturbing and, I hope, will not survive beyond this particular decision. Governments do not have fundamental rights, after all; individuals do. And if the government proposes to act in a manner that is unconstitutional, the individual has the right to stop the action, regardless of whether there is an alternative method available to the government for securing its interest in, as here, executing someone who has been sentenced to death. In this case, though, it appears that simply because the death penalty is still regarded as a constitutionally valid punishment in the abstract, its status in the individual, concrete case is raised to that of a fundamental governmental prerogative that, if denied, must be replaced by an offer from the petitioner to be executed in a known, available, and superior fashion. Grotesque as this is, it strikes me as the most natural reading of what the Supreme Court majority has to say in this opinion.