Notes on Glossip v Gross: The theatre of the death penalty

As a supporter of the death penalty, it has been interesting to see the public response to Glossip v Gross — especially following the very progressive decision in Obergefell v Hodges.  To no small extent, it feels like Glossip is less about the legal arguments and more about the nature of the death penalty.  Certainly the dissenting opinion appears concerned more with opposition to the death penalty rather than the specifics of the case at hand.

For me, this case raises very awkward questions about the pragmatics of the death penalty, rather than philosophical or theoretical discussion of the death penalty itself.

Let’s start with the background.  Four men were on death row:

All four men had been convicted of murder and sentenced to death by Oklahoma juries.

Glossip hired Justin Sneed to kill his employer, Barry Van Treese. Sneed entered a room where Van Treese was sleeping and beat him to death with a baseball bat.

Cole murdered his 9-month-old daughter after she would not stop crying. Cole bent her body backwards until he snapped her spine in half. After the child died, Cole played video games.

Grant, while serving terms of imprisonment totaling 130 years, killed Gay Carter, a prison food service supervisor, by pulling her into a mop closet and stabbing her numerous times with a shank.

Warner anally raped and murdered an 11-month-old girl. The child’s injuries included two skull fractures, internal brain injuries, two fractures to her jaw, a lacerated liver, and a bruised spleen and lungs.

They explored other legal avenues to challenge their convictions and sentences.  This case challenged the way the State was going to execute them.  A previous case (Baze v Rees) had established that a particular drug protocol for execution was not a breach of the Eight Amendment:

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Since Baze, there has been a change to the drug protocol due to the limited availability of those drugs.  The argument was that the new protocol constituted cruel and unusual punishment.  The majority of SCOTUS found that this wasn’t the case.

There are a few points of Alito’s that are worth discussing.

First up, Alito makes an interesting claim:

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.”

As a matter of law, this might be true.  But as a matter of practical reason, we might think it falls short.  Consider the situation where it is lawful to grow a particular kind of plant in Australia but unlawful to import its seeds or other generative material.  Although one activity might be lawful, it’s not true that there is a lawful pathway to that activity.

Despite being in favour of the death penalty, there’s a lot about the way we perform the death penalty that makes me uncomfortable.  A lot of these aspects, I argue, make me uncomfortable with the way we punish in general: race issues, poverty issues, &c., &c., &c.  are all central problems to lawful punishment of whatever kind we discuss.  I don’t think it’s okay that our system prejudices or privileges particular groups simply because we don’t execute them.

But when we discuss the actual killing of the person, we give rise to a special set of questions: how do we kill them?  As a matter of obviousness, we can see executions that are immoral.  Long, drawn out, indefinite executions (which, I argue, includes life imprisonment) are immoral because they inflict unnecessary and unjustifiable suffering.  The punishment is not to undergo suffering, but to be executed.

But what does the suffering look like?  The key issue of Glossip was a debate about the science: did we have a cocktail of drugs that took away the suffering (but not necessarily the pain) of death?  Is there any way that we can satisfactorily answer this question?

The mystery of science is important for a lot of people who make the ‘death penalty is humane’ argument.  Science is used to execute people because it’s clinical.  Electrocution and hanging seem barbaric because they’re not dressed in modern lab coats with the accouterments of medicine.

Just as there are debates about the standards of incarceration (for example, should prisoners be permitted to smoke? Answer: no, ffs), we also have these debates about the standards of executions.  To somebody who disagrees with the death penalty absolutely, it’s not going to be a productive discussion.  But for those of us that think the death penalty is morally justifiable, the question of how we execute doesn’t lead naturally to any good answers.  It seems insane that we talk seriously about ‘killing a person safely’.

Scalia’s decision is a good one to read if you’re a fan of a Bill of Rights for Australia.  When contemplating whether the eighth amendment prohibits the death penalty, he refers to the other amendments:

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 reason is obvious: It is impossible to hold unconstitutional that which the Constitution explicitly contemplates. The Fifth Amendment provides that “[n]o person shall be held to answer for a capital . . . crime, unless on a presentment or indictment of a Grand Jury,” and that no person shall be “deprived of life . . . without due process of law.” Nevertheless, today Justice Breyer takes on the role of the abolitionists in this long-running drama, arguing that the text of the Constitution and two centuries of history must yield to his “20 years of experience on this Court,” and inviting full briefing on the continued permissibility of capital punishment.

Rights — if they exist, which they don’t — then they will be supralinguistic.  But law isn’t.  By pinning down these rights into entrenched language, you invite this kind of nonsense.  It would never have been conceived by the framers of the constitution that protections against particular kinds of injustice would one day be used to defend a particularly contentious form of punishment.  Fortunately, Scalia’s conclusion is entirely right:

Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia. The Framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: they left it to the People to decide.

Except for the next bit:

By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.

Scalia, my dude, quit while you’re ahead.

Author: Mark Fletcher

Mark Fletcher is a Canberra-based PhD student, writer, and policy wonk who writes about law, conservatism, atheism, and popular culture. Read his blog at OnlyTheSangfroid. He tweets at @ClothedVillainy

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