On Monday, the Supreme Court upheld Oklahoma's blatantly cruel practice of execution by lethal injection, declaring that there's nothing cruel and unusual about it, so rock on, Oklahoma, and lethally inject all the death-row inmates you want.

The state uses a combination of three drugs -- midazolam, vecuronium bromide, and potassium chloride -- to render an inmate unconscious, and then to stop the inmate's breathing, and finally, his (or her) beating heart. This is what passes for a "humane" form of execution, because the inmate is supposedly knocked out before being murdered, so it won't even hurt!

Except for when the midazolam fails to work as intended, like during Oklahoma's grotesque "botched" execution of Clayton Lockett in 2014:

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Clayton Lockett’s execution Tuesday night was halted after about 20 minutes due to an issue with a vein, the Associated Press reported. Not long after Lockett was deemed unconscious from the first of three drugs, he began “writhing on the gurney,” according to the Associated Press. He was declared dead 43 minutes after the execution began.

Four inmates on death row asked a lower court to stop the state from killing them with that combination of drugs since maybe it doesn't work so well after all and being forced to writhe in agony while slowly dying for more than 40 minutes sure seems cruel, but the Court said, "Nah, it's fine," and the Supreme Court's conservative justices agreed:

First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method of execution claims. [...] Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.

In other words, the petitioners failed to prove that there's a chance the three-drug cocktail method of execution might cause "severe pain," and besides, they haven't identified any less painful methods, so whatcha gonna do? They gotta die somehow.

The majority opinion reviews the history of the death penalty in America and concludes that we're a whole lot nicer now to the inmates we murder, because we don't do it like our founders did in the old-timey days of public hangings or firing squads, though earlier this year, Utah went retro and brought back ye olde firing squads. Justice Alito also reminds us that Oklahoma has promised to be way more better about how it administers lethal injections from now on, so it should be all good now, no more "oops" executions ever again, probably. What a relief.


Finally, we find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be “drawn and quartered, slowly tortured to death, or actually burned at the stake.” [...] That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.

Some, like the Court's liberals, might suggest execution is still really bad and wrong, but nuh uh, says the majority, because that's why. Excellent legal reasoning. And an excellent explanation for why there's nothing unconstitutional about killing Americans convicted of heinous crimes, sometimes in an excruciating and slow way, because hey, it could be a lot worse.

Shocking no one, Justice Scalia not only agrees with the Alito opinion, but feels compelled to chime in with his own extra-special patented Scalia ghoulishness -- the "pro-life" justice loves killing people as long as they're not in the womb -- and dickishness toward his colleagues who dissented:

The response is also familiar: A vocal minority of the Court, waving over their heads a ream of the most recent abolitionist studies (a superabundant genre) as though they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.

The death penalty is perfectly constitutional because the Supreme Court has always said that it is, and the "vocal minority" of bleeding heart liberals are being a bunch of Constitution-hating pussies for considering that perhaps government-sanctioned murder of Americans is a tad problematic. And even if the justice system has a few kinks that might result in executing people who are in fact innocent, that's no reason to cease executions:

Even accepting JUSTICE BREYER’s rewriting of the Eighth Amendment, his argument is full of internal contradictions and (it must be said) gobbledy-gook. He says that the death penalty is cruel because it is unreliable; but it is convictions, not punishments, that are unreliable.

Yes, Scalia is a monster. A cruel and heartless monster who does not give a flying fuck if innocent people are executed by the state because oh well.

Even though it makes the conservatives on the court crabby as hell, the four dissenting justices dare to explore the question of whether the death penalty, regardless of method, is constitutional at all. Justice Stephen Breyer reviews, at length, the evidence showing how often people convicted of crimes are later exonerated, which suggests that yes, states have wrongly executed innocent people:

This research and these figures are likely controversial. Full briefing would allow us to scrutinize them with more care. But, at a minimum, they suggest a serious problem of reliability. They suggest that there are too many instances in which courts sentence defendants to death without complying with the necessary procedures; and they suggest that, in a significant number of cases, the death sentence is imposed on a person who did not commit the crime.

To Breyer and his fellow dissenters, that's a pretty good reason to more fully examine the general practice of the death penalty, not only in Oklahoma, and not only by lethal injection, but in all circumstances. Breyer also discusses the extensive evidence that the death penalty is applied arbitrarily:

Numerous studies, for example, have concluded that individuals accused of murdering white victims, as opposed to black or other minority victims, are more likely to receive the death penalty.

As we gleefully lawsplained at you last week, dissenting opinions have no actual effect, which, in this case, is a real shame. While it's not legally binding, Breyer's dissent should be required reading for anyone who doubts the wrongness of the death penalty:

The question raised by these examples (and the many more I could give but do not), as well as by the research to which I have referred, is the same question Justice Stewart, Justice Powell, and others raised over the course of several decades: The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning. How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?

Excellent question. Perhaps one day the Supreme Court will find its way to the only possible answer: we can't. Until then, sadly, Oklahoma is free to kill its citizens by lethal injection, so long as it promises to try real hard to ensure it doesn't hurt too much.

[Glossip v. Gross]


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