The question of whether we, as a nation, should have the death penalty is often framed around whether or not a particular defendant deserves to die. As prominent scholars in this field have pointed out, the real question may be: Do we, as a society, deserve to kill? Does our collective commitment to equity, justice, accuracy and understanding allow for the imposition of the ultimate punishment for which there can be no margin of error? Or, instead, are we willing to tolerate a system that is inevitably influenced by race and poverty and cling to the archaic use of excess punishment and legalized vengeance instead of providing those in need with services and rehabilitation?
In the Supreme Court’s 5-4 decision on June 29 to uphold the use of a questionable execution protocol in Oklahoma, virtually all of the justices in the majority and concurring opinions referenced the question of whether the defendant deserved to die (reaching varied conclusions). However, the Court’s rendered opinion in Glossip v. Gross also makes clearer than ever before that we, as a society, do not deserve to kill.
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The issue in Glossip centers on the use of a relatively new protocol in executions: the administration of 500 milligrams of midazolam, a sedative, followed by a second and third drug intended to kill. The use of midazolam became necessary after drug companies refused to provide sodium thiopental and pentobarbital (chemicals previously used in lethal injection procedures) to correctional facilities seeking to use those chemicals in executions.
In Ohio, Oklahoma and Arizona, three prisoners were visibly tortured to death with midazolam, as they gasped and writhed in apparent pain for between 10 minutes and two hours. The Oklahoma execution of Clayton Lockett was aborted midway through when it was clear that he was not dying in the manner envisioned by the state. This sparked renewed outcry in the continuing debate about whether it is possible to carry out executions in a manner consistent with the prohibition against cruel and unusual punishment in the Eighth Amendment. Contending that midazolam would not reliably render them unable to feel pain, Oklahoma death row prisoners filed a motion for a preliminary injunction to prevent scheduled and future executions.
Yet rather than confront the torturous nature in which these civilians were put to death, the majority and concurring opinions in the Glossip case blame death penalty abolitionists for the absence of the drugs that are (at least arguably) medically suitable for this purpose.
The crux of the majority opinion is that because the death penalty is constitutional, there must be a constitutional way to carry it out, and because there must be a constitutional way to carry it out and the petitioners cannot offer another available option, this one is good enough.
As Justice Sonia Sotomayor argues in her pointed dissent, the majority’s insistence on placing the burden of an adequate alternative on the petitioners leads to absurd and tragic consequences: “Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment – the chemical equivalent of being burned alive … But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly trotted to death or actually burned at the stake.”
Justice Stephen Breyer, also in dissent, asks whether, given what we now know, there can be any constitutional means to execute a human being.
Together with Justice Ruth Bader Ginsburg, Breyer moves beyond the relatively narrow examination of the use of midazolam in executions, to all but conclude that regardless of the specific chemicals used, a civilized and enlightened society cannot engage in the legal murder of its citizens. Breyer bases his dissent on data pertaining to the exonerations of innocent individuals on death row, the psychological consequences of awaiting a state-sanctioned sentence of death, and the arbitrary nature in which the death penalty is often imposed. He also cites disparities in the implementation of the death penalty across racial, geographical and poverty lines.
The ultimate question – of whether we, as a society, deserve to render death as a punishment – is answered not only by the minority of justices who addressed it directly, but also by the troubling analysis of the majority. In ignoring virtually all of the deep moral questions that surround the death penalty, including the very basic question of whether states can subject their citizens to untested torture, the majority’s flawed opinion underscores this fundamental point: Neither they nor we can morally decide whether and when to take the life of another in state-sanctioned executions.