The Appearance and Reality of Cruelty in Glossip v. Gross

The U.S. Supreme Court recently heard argument in Glossip v. Gross, in which one of the primary issues presented is whether Oklahoma’s lethal-injection three-drug protocol is constitutionally permissible under the Eighth Amendment. The Oklahoma protocol includes a drug called midazolam, which is administered prior to the other two drugs and meant to prevent the prisoner from feeling the effects of the latter drugs. The second and third drugs in the protocol paralyze the body, thereby stopping the inmate from breathing (causing suffocation), and stop the heart, respectively, actions that would cause the prisoner horrible pain and suffering in the absence of a first drug that effectively renders him unconscious and insensitive to pain during the latter drugs’ administration.

Among the fascinating topics of the exchanges that took place between the attorneys and the Justices during oral argument was one that came from Justice Kagan and later from Justice Alito, regarding the hypothetical case of the execution of a prisoner by burning him alive after giving him a drug comparable to midazolam. In this column, I will examine some implications of these exchanges.

An Overview of the Case

Before launching into a discussion of the particular exchanges I mentioned above, let us consider the case presented before the Court more generally. Oklahoma is currently utilizing a lethal-injection three-drug protocol as its method of executing people sentenced to death. The U.S. Supreme Court has had occasion previously, in Baze v. Rees, to consider a somewhat different (from Oklahoma’s) three-drug protocol, challenged on a different ground (based on the risk of improper administration), and held that it complied with the Eighth Amendment, notwithstanding the danger that the prisoner would suffer great pain if the drugs were not administered correctly (a contingency that has occurred a number of times). In Baze, the first drug in the protocol—the one that was meant to protect the prisoner from experiencing the effects of the other two—was sodium thiopental.

One potential reason for Oklahoma’s use of a different first drug (the one intended to protect against the suffering caused by the latter two) is that, apparently due in part to pressure by death penalty opponents, drug companies have not been supplying the more reliably protective drug, sodium thiopental, for use in executions. In Justice Alito’s words, there has been “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[.]” Midazolam, in other words, might not have been Oklahoma’s first choice of protective drug, but the state did not have a lot of alternatives, given increasing hostility to the death penalty by abolitionist activists and a resulting shortage of the drug of choice.

The petitioners in Glossip claim that the evidence shows that midazolam neither kills pain nor reliably maintains a patient in an unconscious state during the process of execution, thus exposing the condemned prisoner to the excruciating suffering resulting from the two drugs administered after the midazolam, which, just to reiterate, stop the prisoner from breathing (through paralysis) and then stop the prisoner’s heart. Justice Kagan observed a number of times that if conscious, an inmate experiencing the two lethal drugs suffers pain comparable to that of a prisoner being burned alive.

One of the questions presented in the case is whether the prisoner is required to come up with an alternative to the drug about which he is complaining in order to mount a successful Eighth Amendment challenge to its use. Some implications of this question emerged more fully during oral argument, which Professor Michael Dorf ably analyzed here. Justice Alito implied that so long as the death penalty is legal, death penalty opponents should not be given the power to preclude executions by making the most effectively protective drugs unavailable and then turning around and complaining, as the petitioners have here, that the drugs that are available are insufficiently protective. If the Justice’s implication prevails in the case, then the impact may be to subject condemned prisoners to very painful executions unless they can supply a better (and available) alternative (a highly unlikely capacity for a death row inmate with limited control over the availability of pharmaceuticals).

Exchanges About Burning a Prisoner Alive

At one point during the oral argument, Justice Kagan presented the following scenario to the respondent’s attorney: “people say that this potassium chloride, it’s like being burned alive. We’ve actually talked about being burned at the stake, and—and everybody agrees that that’s cruel and unusual punishment. So suppose that we said, we’re going to burn you at the stake, but before we do, we’re going to use an anesthetic of completely unknown properties and unknown effects. Maybe you won’t feel it, maybe you will. We just can’t tell. And—and you think that that would be okay.” The attorney protested that this scenario would certainly violate the Eighth Amendment, though he attempted to distinguish midazolam from the hypothetical “anesthetic of completely unknown properties and unknown effects.”

In a later exchange picking up on this first one, Justice Alito addressed the petitioners’ attorney with the following question: “[I]f an anesthesiologist rendered a person completely unconscious, and then the person was burned alive, would that be cruel and unusual punishment?”

The attorney responded that the problem with midazolam is not with rendering someone unconscious but with maintaining a deep level of unconsciousness.

Justice Alito then modified his question accordingly, to get to his actual point: “Yes. So an anesthesiologist is called in to make sure that this person feels no pain whatsoever while being burned alive, and then the person is burned alive, would that not be a violation of the Eighth Amendment anyway?”

The petitioners’ attorney began to respond, and Justice Kagan interrupted, to help her, by saying, “Because potassium chloride . . . is kind of like that, isn’t it? It’s being burned alive from the inside. That’s what it is.”

And the attorney responded in agreement, “That’s exactly what it is, Justice Kagan . . . .”

At this point Justice Alito reiterated his own question: “But . . . you think there are circumstances in which burning somebody at the stake would be consistent with the Eighth Amendment?”

After some further back and forth, the petitioners’ attorney replied as follows: “Well, what I’m saying is that . . . the founders say burning at the stake is unconstitutional. It creates an Eighth Amendment violation. It’s cruel and unusual. But in your hypothetical, if there was a way to ensure that that was done in a humane way, there could perhaps be . . . .”

Justice Alito then responded by saying, “That’s an incredible answer. You think that there are circumstances in which burning alive would not be a violation of the Eighth Amendment? Burning somebody alive would not be a violation of the Eighth Amendment?”

In his exchange with the petitioners’ attorney, Justice Alito plainly indicated his own view that regardless of how effectively one could prevent the execution process from causing pain, burning a prisoner alive would unquestionably violate the Eighth Amendment prohibition against cruel and unusual punishments.

The Potential Oddity of Justice Alito’s Position

Consider a juxtaposition of Justice Alito’s views expressed during the course of the oral argument. First, he apparently believes that, as an Eighth Amendment matter, midazolam is perfectly acceptable in the three-drug execution protocol so long as midazolam is the best that Oklahoma can do, given the “guerilla” tactics of death penalty opponents pressuring drug companies not to supply the states with the more effectively protective drug, sodium thiopental, for use in executions. This in spite of the fact that it appears that midazolam may not reliably keep the inmate unconscious during the execution process, thus resulting in pain (from the other two drugs) that may be comparable to what an inmate would experience if he were burned alive.

Second, Justice Alito takes the view that even if one could guarantee a pain-free experience for the condemned, the Eighth Amendment would still bar his execution by burning at the stake, and the Justice is, furthermore, is shocked to learn that the petitioners’ lawyer would even entertain the possibility that such a punishment might be okay.

Thus, for Justice Alito, while it is apparently constitutionally acceptable to execute a person by lethal injection in a manner that may result in the actual feeling of being burned alive, it is beyond dispute unconstitutional to execute a person by burning him alive in a manner that assures a complete absence of sensation and pain. The upshot of these two positions is that the Eighth Amendment may be concerned with something that is entirely divorced from the actual experience of the condemned during an execution. But what is that something?

Appearances and Audience Sensation

If one were concerned exclusively with the pain of the prisoner, then answering the questions posed above would be a no-brainer: you cannot execute a person with painful drugs preceded by an unreliable sedative that may not prevent consciousness during an otherwise excruciating dying process, but you can execute a person by burning him alive if the burning is preceded by a 100% effective drug that prevents all consciousness and pain during the dying process. Yet Justice Alito believes that the opposite is true. What is left of the Eighth Amendment, then, if the internal experience of the prisoner is irrelevant?

The answer lies in the experience of the audience. When a prisoner is executed by lethal injection, the audience will most likely witness what appears to be a very calm, orderly, and painless process. Even if, on some occasions (or perhaps, if midazolam is as unreliable as argued, on many occasions), the actual experience of the prisoner is horribly painful, the people watching, and thus the citizens of the United States, will feel that they have been part of a civilized and humane process that affords the condemned the opportunity to die without undue suffering.

By contrast, even if a prisoner is given highly effective medication that induces unconsciousness and an inability to feel any pain, those who witness him being burned alive will likely be traumatized by the experience. Indeed, many people avoid going to movies in which torture is depicted, precisely to avoid such trauma, even though the audience knows at the time that the “victims” in the movie are actually actors who are not in fact being tortured at all. When people witness what looks like an extremely painful, torturous experience, they feel empathy and (assuming they are not sociopaths) suffer to some degree what they imagine is happening to the other person.

It could thus be harrowing for an audience, including witnesses as well as prison officials, to watch a prisoner being burned alive, and the trauma could well extend to the people living in this country who know that such an execution is taking place. Simply put, a burning at the stake looks and “feels” barbaric to the audience, regardless of what drugs have been administered to the prisoner beforehand to prevent him from experiencing any pain or sensation. And that is likely why Justice Alito was so shocked to hear the view that burning at the stake could in some cases be consistent with the Eighth Amendment.

To some degree, it is laudable that we take into account the sensibilities of the audience in determining whether a punishment constitutes an Eighth Amendment violation. Particularly when the suffering of a prisoner will be evident to the viewer, as would historically have been the case, being attentive to the (increasingly civilized) audience’s reactions, and to its outrage and revulsion at what it views as cruelty, will help give content to the “evolving standards of decency” that have animated and developed the Eighth Amendment through the years.

This formula goes wrong, however, when the audience is no longer in a position to be able to detect whether and to what degree a prisoner is suffering during the course of an execution. Though the witnesses are “right there” and thus might feel like they truly know what is going on, the drugs used in lethal injection protocols make this perception of knowledge illusory, as Professor Deborah Denno has discussed in her extensive work on the death penalty and lethal injection. Drugs that paralyze a prisoner and stop his heart, though horribly painful if the prisoner is conscious, simultaneously make his pain invisible to viewers. The very drugs that torture him lock him into that torture so that he may, in many cases, be completely unable, visually or audibly, to convey his suffering to the witnesses around him.

As a result, we can wind up with the peculiar state of affairs in which a Justice on the Supreme Court (who is likely not alone in this sentiment) is prepared to affirm the validity of an execution method that may cause a prisoner to feel like he is being burned alive, so long as the execution looks humane from the perspective of the audience, while the same Justice simultaneously recoils at the prospect of an execution method that in fact causes no suffering at all but that looks, from the perspective of the audience, like torture.

This state of affairs strikes me as perverse, insofar as it rests squarely on the primacy of appearances over reality and on the prioritizing of the witnesses’ experience over the prisoner’s experience. The fact that lethal drugs have the power to mask what is going on inside a prisoner ought to give rise to great caution and care on the part of those interpreting the Eighth Amendment rather than giving rise to a complacency and a willingness to choose what is truly barbaric (but appears humane) over what is in fact humane (but appears barbaric). Unfortunately, that complacency and willingness appear to have become a part of Eighth Amendment analysis at this time.