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.