By Michael Arnheim

This was a U.S. Supreme Court 5–4 decision upholding the constitutionality under the Eighth Amendment of lethal injection by a three-drug protocol including midazolam as an acceptable form of execution. The Court also, rather strangely, held that death-row prisoners could challenge their method of execution only if they came up with an alternative method! — what may be characterized as a “pick your poison” ruling. An unusual feature of this case was that the condemned man, Richard Glossip, was convicted of first-degree murder even though he didn’t kill anyone himself but was found guilty of hiring someone else to commit the murder for him, which was done by beating the victim to death with a baseball bat. Another unusual feature of the case is the fact that there wasn’t much evidence against Glossip other than the testimony of the actual killer, Justin Sneed, who was given life imprisonment without parole in return for confessing and pointing the finger at Glossip. Sneed’s own grown daughter wrote to the Oklahoma Pardon and Parole Board that, based on her many communications with her father, she “strongly believes” that Glossip was innocent, adding: “For a couple of years now, my father has been talking to me about recanting his original testimony. I feel his conscious [sic] is getting to him.” This letter arrived too late for it to be considered by the board. But Glossip, who has never stopped proclaiming his innocence, turned down a plea bargain under which he would have been sentenced to life with parole.

However, the Supreme Court wasn’t concerned with the curious facts of the case, only with the question of a constitutionally acceptable form of lethal injection. Justice Breyer, who is opposed to capital punishment of any kind, claimed that “this country has fallen short of the aspiration that capital punishment be reserved for the ‘worst of the worst.’” Justice Clarence Thomas, concurring with the majority, rejected Justice Breyer’s whole argument and recited a catalog of gruesome murders whose perpetrators had been granted a stay of execution by the Supreme Court itself. Thomas concluded his opinion with this powerful, down-to-earth observation: “To the extent that we are ill at ease with these disparate outcomes, it seems to me that the best solution is for the Court to stop making up Eighth Amendment claims in its ceaseless quest to end the death penalty through undemocratic means.” This is a salutary reminder that, as the death penalty is implicitly approved by the Constitution, it would be undemocratic for the Court to abolish it — something that can only be done by the process of amendment, involving a vote in Congress followed by ratification by the states.

Justice Alito, for the majority, wrote that “because it is settled that capital punishment is constitutional, ‘it necessarily follows that there must be a [constitutional] means of carrying it out.’ And 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.”

So far, so good. Capital punishment is currently legal in 31 states. But in May 2016, the giant pharmaceutical company Pfizer announced that its drugs could no longer be used in lethal injections. Pfizer is the last big-name pharmaceutical company to withdraw its products from the death penalty industry, placing a question mark over the future of lethal injection. Maybe other states will consider following the example of Utah, which has now relegalized its traditional method of execution by firing squad.