Wednesday, August 05, 2015

A Fundamental Right to Execute People

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.


Joe said...

I'm against the death penalty and agree with Breyer/Ginsburg.

But, the majority to me appears to be saying that the death penalty itself can be a compelling state interest (this subject has been discussed by experts but to simplify, this term has broad scope & as applied even when rights are burdened does not merely include things absolutely necessary), at least some majority justices believe the Constitution readily singles out as acceptable [cf. Stevens in a footnote in Baze v. Rees.]

I don't know if they would use that strict of a test - not only Kennedy is cases involving gays and lesbians use scrutiny language that is a bit hazy -- but let's grant it is something more than rational basis. The opinion at the very end (in response to Sotomayor's burning at the stake reference) insists the requirement put on the executed has a floor -- there are certain punishments simply too barbaric to allow. And, there is some burden on the defendant to show this was present and the majority claimed they failed here.

OTOH, above that floor, there is more room for the state. The state does not have to provide the least painful or liable to cause pain punishment. We see this already regarding prison, which often is pretty cruel and there is a big debate going on that we should reform policies to address it. There is no compelling interest, e.g., to imprison someone who sells a small amount of marijuana. But, the state is allowed, with a high burden put on the person to block it, to do so including in ways that have very bad results for the person in various cases.

Again, I am with the dissent. I would not put a person sentenced to die to this test. I don't think executing people is that compelling put them to the risk to this and other constitutional violations. I would at the very least require a heightened test. But, shocking the majority might be, how surprising is it given long term assumptions in this context?

Mister Teknologi said...

Steven D Stewards, JD Says:

"No system of justice can produce results which are 100% certain all the time. Mistakes will be made in any system which relies upon human testimony for proof. We should be vigilant to uncover and avoid such mistakes. Our system of justice rightfully demands a higher standard for death penalty cases. However, the risk of making a mistake with the extraordinary due process applied in death penalty cases is very small, and there is no credible evidence to show that any innocent persons have been executed at least since the death penalty was reactivated in 1976... The inevitability of a mistake should not serve as grounds to eliminate the death penalty any more than the risk of having a fatal wreck should make automobiles illegal"

Kado Unik --

Hashim said...

Here's a different way of conceptualizing the second holding in Glossip: It's simply not "cruel and unusual" to use a certain method of execution *merely because of the risk* it poses *if there's no other method of execution available* with a lower risk. Specifically, the knowing acceptance of the risk isn't "cruel," because it is an unwanted and ancillary consequence of the legitimate penological interest in carrying out the death penalty, rather than being the wanton and sadistic imposition of pain for its own sake; and the knowing acceptance of the risk presumably wouldn't be "unusual," because all 30+ of the DP states would by definition have to be using it.

Now, I'm sure you and others would disagree with this substantive view of the 8A. And I'm not particularly interested in defending it here (though the irony of this "living" and "evolving" assessment of a particular method of execution is pretty delicious). I just want to point out for now that Glossip's holding doesn't require treating the Govt as having a "fundamental right" to execute people; it just requires interpreting the 8A's "cruel" and "unusual" requirements to be dependent on context.

Kaelik said...

I genuinely can't tell if Mr.Teknologi is a bot. Posts completely unrelated to the actual point of the post, and then adds in a link I'm not going to go to. Could be either person or bot.

Joe said...

Suspicious generic quotation though it is at least tangential to the subject and longer than usually present in spam. If a bot, they appear to be evolving to deal with spam blockers. "Kado Unik" looks to be a shopping organization.

Unknown said...

Really interesting post, Sherry, thank you. And I think Hash's reply is also helpful.

Hash, here's a hypo for you. Suppose that State A is engaged in a just war against a powerful opponent, O . Then A discovers a way to protect itself from all of O's attacks for some time, so that it is in a position to wait things out without doing anything until O gives up. Still, A launches a surprise attack on O, in order to win the war, foreseeing that O will be harmed, but intending that O be incapacitated (not that O be harmed). Harm to O is just an ancillary consequence of the attack. Would you count this attack as cruel? I know I would.

Moral: It seems like you are trying to appeal to the Doctrine of Double Effect (on behalf of the Glossip majority). But it is a misunderstanding of the DDE to suppose that mere foreseeability (without intention) is sufficient to justify the imposition of harm.

Hashim said...

Sam, I'm not suggesting that, in all legal (let alone moral) contexts, the mere absence of intent to impose harm is always "sufficient" to justify the imposition of harm so long as there were some other legitimate motive for engaging in the harm-creating conduct. But I am saying that that's a perfectly plausible position in the specific context of the word "cruel" in the 8A. Namely, there's plenty of 8A caselaw to support the proposition that the provision targets the sadistic and wanton punitive imposition of pain *for its own sake*, and thus doesn't reach the imposition of pain when it is the unintended but necessary consequence of a legitimate penological objective such as the death penalty.

Unknown said...

Hash: Riiiiight. You know, it saves resources not to build walls in prisons. So, then, it wouldn't be cruel to house prisoners in prisons without walls, knowing that many prisoners would be killed and tortured by others, because, you know, removing the walls wouldn't involve sadism or the punitive imposition of pain for its own sake.... Yeah, I've seen some of the caselaw, which is manufactured (ad hoc) precisely to produce the consequence that the DP is just mighty fine thank you very much.

Hashim said...

Sam, what a strange example. Many prisoners already are killed or raped despite all those helpful walls, and it wouldn't happen if prisons, for example, gave each prisoner his own armed bodyguard. So is it unconstitutionally cruel that prisons don't do so because they are merely saving resources?

In any event, your hypo and mine both do involve the wanton imposition of pain - just by the prisoners themselves, and the question is when the prison can be held responsible for that. So even if I conceded that deliberate indifference to cruelty by others could sometimes violate the 8a, that still wouldn't mean that the 8a is violated when no one is acting cruelly.

More generally, the 8a case law on pain wasn't an ad hoc defense of the dp. Almost all of it instead arose in the context of excessive force by guards.

Most importantly, it's a little rich to describe that strand of case law as ad hoc, given its consistency with the prison conditions at the time of the 8a, as opposed to the living, evolving, and utterly invented case law necessarily invoked by dp opponents.