Supreme Court

SCOTUS Rejects 8th Amendment Challenge to Oklahoma Death Penalty Drug

"Some risk of pain is inherent in any method of execution."


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In a 5-4 decision issued today, the U.S. Supreme Court rejected an 8th Amendment challenge aimed at stopping the state of Oklahoma from using a potentially unreliable drug when carrying out the death penalty via lethal injection.

At issue today in Glossip v. Gross is Oklahoma's use of the drug midazolam to render prisoners unconscious and insensate during lethal execution. According to the petitioners, midazolam "is not approved or used as a standalone anesthetic during painful surgeries, because it is inherently incapable of reliably inducing and maintaining deep, comalike unconsciousness."

Writing for the majority, Justice Samuel Alito rejected that claim. "Testimony from both sides supports the District Court's conclusion that midazolam can render a person insensate to pain," Alito wrote. Furthermore, Alito declared, "because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain…. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."

Alito's opinion was joined by Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.

Writing in dissent, Justice Sonia Sotomayor denounced the logic of Alito's judgment. "If all available means of conducting an execution constitute cruel and unusual punishment," Sotomayor observed, "then conducting the execution will constitute cruel and usual punishment."

In a separate dissent, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, questioned whether the death penalty itself should be abolished. "I believe it highly likely that the death penalty violates the Eighth Amendment," Breyer wrote. "At the very least, the Court should call for full briefing on the basic question."

The Supreme Court's opinion in Glossip v. Gross is available here.

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  1. “I believe it highly likely that the death penalty violates the Eighth Amendment,” Breyer wrote.

    The framers were against the death penalty?

    1. And definitely for grey marriage. Nothing more beautiful than two old people getting married.

    2. Well, wasn’t capital punishment incredibly “unusual” at the time? I mean, no one ever was executed back then.

    3. My first thought as well. There sure was a lot of executin’ going on back when they banned cruel and unusual punishment.

    4. This despite the inconvenient fact that the fifth amendment specifically refers to capital crimes . How can there be capital crimes without a death penalty you ask ? Stay tuned as the amazing so-called justice Breyer discovers a penumbra and extracts it from his anus using on a wood-chipper and a red hot poker..

    5. This court prides itself on ruling in favor of the executive branch of government as much as possible. This court has no respect for the constitution and the rule of law. They just make up the rules as they go along. Just like our government employee crooks and personal injury a**hole lawyers. If a personal injury lawyer spills soda on him or her self they feel they are entitled to millions for their injury. They cost each consumer thousands every year in higher costs for goods and services. They love the jack pot by stupid ignorant jury. They want the dumbest most ignorant people they can find to sit on a jury trial, so they can get millions for a injury that was worth only a few thousand.

    6. Yes, the inescapable implication is that the Constitution is unconstitutional.

  2. Hello? Greek crisis… AM links doesn’t cut it.

    1. What? Did somebody burn the spanakopita?

  3. Cosmo / Paleo Death Match begins!

  4. It is is obvious that denying commenters alt-text is cruel and unusual punishment.

  5. I find these arguments strange. Hurting someone is the worst, killing someone is okey-dokey.

    1. Well unless there’s some compelling state interest, like a nuclear bomb under the Superbowl or an upcoming primary, then hurting people is just fine.

      1. Also if you need a confession but don’t feel like finding the real perpitrator of the crime.

    2. I have a lot of problems with the whole “Executing anyone, ever, is cruel and unusual” argument. Say we should;t have a death penalty because there are too many ways the system works to convict the innocent? That’s an argument I can get behind. “We shouldn’t take any chance of causing pain to someone who we are really very sure murdered his teenage girlfriend and a toddler with a ball peen hammer”?

      Crucify the sonofabitch.

      1. I agree. I oppose the death penalty because I don’t trust the state to do it. If I was was running a post apocalyptic war camp, I would shot criminals in the back of the head in plain sight.

        1. How is the death penalty different from any other penalty in this regard?

        2. WRT to violent criminals in prison,already serving a life sentence,what further punishment is there to give them if they kill another prisoner or guard while in prison?
          that’s happened several times already.

          Do you just let them get away with another murder?
          how would a murdered guard’s family/survivors get any justice?

          How about Tim McVeigh? Should he be serving a life sentence? cop-killers? Presidential assassins?

          One thing is CERTAIN,an executed murderer commits NO more murders or other violence.

      2. And locking up a bunch of criminals together is a guaranteed way to subject the convicted to pain, so this interpretation of the 8th amendment seems to ban any kind of criminal punishment.

  6. For libertarians still undecided about the death penalty, it might be meaningful to to adopt the stance that the state should not be allowed to legally kill people.

    Until there is a decision on the death penalty made nationally, it is hard to see a real disagreement I have here with this decision. Not at all sure what “reliable” means.

    1. This is pretty much where I am. I’m not at all convinced that the risk of executing an innocent is worth punishing the guilty, but I’m absolutely certain that I don’t want the state to have the power to kill someone as a result of an opinion poll of 12 hand-picked schmucks and then have the balls to call that justice.

      It’s why I say without a smidgeon of irony that I am 100% opposed to the death penalty but not that concerned about vigilante executions.

      1. LOL. vigilante executions are more often plain murder (very good chance they have the wrong guy),but courts of law involve physical evidence and eyewitness testimony,and attention to a person’s Constitutional rights. Very few -if any- executed persons have later been found to be innocent. I have yet to learn of any executed criminal (in the US) to have been found to be innocent later on.

        1. “…but courts of law involve physical evidence and eyewitness testimony,and attention to a person’s Constitutional rights.”

          Yeah. You keep drinking that koolaid Jay.

          We’ve seen all too many instances lately of what a fraud the phony “judicial system” is when cops murder and assault people. We have plenty of evidence of how prosecutors, judges, cops and other “legal system” scum conspire to indite innocent people of crimes they dod not commit and to sentence criminals for more serious crimes than they actually committed while letting off completely those with government, political contacts or wealth to pad the pockets of the “legal system” scum. I think vigilantes would do a better job.

          Remember Waco.

  7. Deer rifle bullet to the back of the head. Instant and, therefore, humane.

    If we’re going to do it, let’s avoid the pretense of killing a person civily.

    1. This. And it should be televised. There is no interest in the state keeping it private except to avoid the ick factor. People should be able to see what the government is doing in their name.

      1. Fine, but only if the murder was reenacted and televised as well. Otherwise people get no idea of context. SInce the death penalty is generally used in cases of murder with aggravating circumstances we need to show that.

    2. I’ve seen people with half their face missing after attempted suicide that lived. It’s not fool proof.

  8. I’ll preface my remarks by saying the death penalty is plainly constitutional on its face. It is mentioned several times in the Constitution and it’s quite clear the Founding Fathers took its existence as a given, hence putting in a bunch of due process protections to prevent its abuse.

    That being said, holy Jesus, only government could turn finding a painless way of killing someone into such a colossal clusterfuck. I think government should be required to prove with reliability that execution methods they use are humane, which I do not think was met here.

    1. Yes, the argument “is the death penalty Constitutional” is not the same as “is the death penalty a good idea”.

      1. -1 Living Constitution

    2. The amazing thing is that the painless method is really, really cheap, effective, and has no sourcing problems.

      Nitrogen Asphyxiation. Simply remove oxygen and have the prisoner breathe pure nitrogen for a 15 minutes.

      1. Or helium. They are called exit bags and are commonly discussed on suicide web boards. So just have the state DOC buy a shitload of mylar party balloons, strap the killer down and tape the balloon on his head.

        1. No clowns present, or you once again have an eighth amendment violation.

      2. .22 LR single shot to the head;100% effective,works on everybody,FAR quicker than your method. Cheap,readily available,no need for any medico to apply it. Painless.(the brain does not feel pain.)

        BTW,that asphyxiation method is not exactly painless. and it takes far too long.
        it fits “cruel and unusual punishment”.

        1. Some slimeball rapes, mutilates and murders a woman and you think I give a shit if he dies a long and painfully excruciating death? You would be wrong – I pray he does!

    3. The inefficiency of government being taken as granted I think it important to note that it is not *entirely* Oklahoma’s fault in this case. Reading the Decision is appears a number of SJW types have made it their mission to disrupt the market, making it impossible to actually procure the “acceptable” drugs in a effort to subvert the process. Add to that the number of frivolous filings and cases (such as this one) to the mix, and the inefficiency becomes more obviously by *design*.

  9. Yeah, obviously the death penalty is unconstitutional. The founders clearly didn’t approve of the death penalty…

    Apr. 30, 1790 – First US Congress Establishes Federal Death Penalty

    “The First Congress adopted several other bills relating to the federal judiciary or its functions. Except for the bill providing salaries, these bills originated in the Senate. Most important was the Punishment of Crimes Act, the first listing of federal crimes and their punishment. In addition to treason and counterfeiting of federal records, the crimes included murder, disfigurement, and robbery committed in federal jurisdictions or on the high seas. The fourth paragraph of the act authorized judges to sentence convicted murderers to surgical dissection after execution. The fifth paragraph provided fines and imprisonment for anyone attempting to rescue a body of an individual sentenced to dissection.”

    1. All true. Fortunately, The Age of Enlightenment doesn’t actually preclude the onset of further enlightenment on a subject.

  10. I propose the death penalty for anyone who confuses “unconstitutional” with “things I think are wrong”.

  11. “Some risk of pain is inherent in any method of execution.”

    No, that’s actually not true…

    1. Correct. That is a gross assumption on her part.

      It would be more correct to say; “Some risk of costly and over-reaching authority vested in the State is inherent in any method of execution.”

      Conclusion: Lets not have executions then.

  12. Ok, so why the fuck is the possibility of inflicting some pain cruel and unusual?? By that definition any incarceration would be considered cruel and unusual (pain of seperation from loved ones, pain of being locked up and not able to pursue the activities of one’s choice. Fucking handcuffs hurt. Now, I am not talking bamboo chutes under the fingernails or electrodes on a dude’s balls.

    Again, as someone else pointed out, if one wants to make the argument the death penalty is applied unfairly (actually, I don’t believe this is true, but that is a different argument) than that should be argued state by state. Perhaps TX or OK are doing it unfairly, but maybe another state isn’t. But that doesn’t imply that execution is inherently cruel and unusual.

    1. You are getting dangerously close to the original framer’s intent of allowing such things to be handled by the States. Shame on you! *sarcasm mode*

    2. it”s “bamboo SHOOTS”.
      like ramming a toothpick under your nail.

  13. Maybe we could speed up Supreme Court hearing with Ginsberg, Breyer, Sotomayor and Kagan voting: LIBERAL
    and Thomas, Scalia and Alito voting: CONSERVATIVE.

    That way only Kennedy and Roberts would need to bother with deciding something (of course, based on their combined judicial “wisdom” a coin flip would serve)

  14. Let the condemned choose the method of execution.

    1. Then I would choose a Global Extinction Event level asteroid, or the Orgasmatron that goes to 11.

    2. I would choose to be pushed off a building. There would be a basketball hoop below me, a thin gauge wire noose around my neck, and my hand velcroed to the back of my head, such that when I reached the basketball hoop the wire cuts my head off and I slam dunk it through the hoop.

      1. Or death by snu-snu

      2. While I applaud the elegance of the concept , it wouldn’t be for everyone. Some might want a few warm up shots .

    3. Yeah, just like we let people choose their political representatives. /sarc.

  15. They do have point there. If the perp is guilty to within a reasonable doubt, then take ’em out in the cheapest way possible: shoot them. Death penalty opponents use process to gum up the works and make it more expensive all the time while they’re using the resulting ordeal as a justification for ending the death penalty.

    1. That’s very dismissive of a great many other opinions. Many, such as myself like neither the death penalty, nor the process. No death penalty, no process – seems a pretty straight forwards and cost efficient compromise.

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  17. I personally feel that the death penalty should not exist, but faced with life in prison, or a comparably long sentence, the convicted should be able to request assisted suicide. I just think that nobody has the authority to end a life, accepting than an individual, who has authority over themselves, may choose to end their own life.

    1. I just think that nobody has the authority to end a life

      I dunno. I’m pretty sure that if somebody raped and murdered my wife, I’d assume such authority in a heartbeat. Which is why I sometimes believe that the best approach to capital punishment is to see juries regularly acquitting those who avenge their families.

    2. You are making me envision a giant hamster cage with to levers: food and death. If they eventually choose death it would work like a Futurama suicide booth.

  18. A bullet to the back of the head brings finality to the discussion.

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  20. a simple .22LR bullet to the head is the best method of execution.
    it’s inexpensive,readily available,100% effective on ALL candidates regardless of their physical condition,and no doctor or medical professional is needed to administer it.
    It’s the quickest method,and the least amount of pain. it’s not “cruel or unusual”.

    I would have the gun mounted to the chair,adjustable to get proper aim for each candidate,so there’s no miss or non-lethal grazing shot. the chair has a headrest to immobilize the candidate’s head. The gun gets triggered electrically,by a button for each person on the execution panel,but only ONE button activates the gun,and that is randomly selected by a electrical circuit,so that nobody knows who fired the gun. [ I’d also have a strong electric shock applied to the seat of any panelist who failed to push their button. B-) ]

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