Justice Alito Looks Facts In The Face, Says, ‘Whatever.’

No Court observer seriously expected the Supreme Court to do anything in Glossip v. Gross, but reaffirm that the Eighth Amendment to the U.S. Constitution does not preclude the gruesome killing of inmates. Only at this nation’s High Court could a justice rail against colleagues for ignoring the dictionary definition of words and turn around days later to join in announcing that 45 minutes of writhing and moaning is in no way “cruel and unusual.”

Strict textualism, indeed.

Indeed, Justice Antonin Scalia has publicly remarked that there’s nothing wrong with killing innocent people, which one would hope rated as at least “unusual” in the eyes of the Founders. Perhaps there’s a Federalist Paper we overlooked about the civic virtue and mundane commonality of killing innocent people.

But even though no one expected this Court to declare the death penalty unconstitutional, it was not a foregone conclusion that it could have limited its opinion to the precise question at hand: whether the specific drug, midazolam, as part of Oklahoma’s lethal injection cocktail, might raise an Eighth Amendment concern. Yet any faith in that outcome was dashed when Justice Alito began to read his decision from the bench this morning. According to Justice Alito, midazolam is not cruel and unusual.

Oklahoma. You might remember this state as the state that severely botched an execution a few years back. The culprit? Midazolam. At its core, Justice Alito’s majority opinion is saying, “how do we know it doesn’t work?” The answer, of course, are FACTS!!! THINGS!!! REALITY!!!

Clayton Lockett was not — not that Justice Scalia would care — an innocent man. In fact, Clayton Lockett was a poster child for why we have the death penalty. A remorseless, brutal killer who calmly confessed his crimes under seemingly no duress. So perhaps it’s fitting that he’s now the poster child for why we shouldn’t have the death penalty. This, from an excellent account by Jeffrey Stern of the Atlantic, takes place after Lockett was supposedly placed unconscious by midazolam and then hit with the harder, euthanizing stuff.

To Warden Trammell, it looked as though Lockett was trying to communicate something. He kicked his right leg. He began to breathe heavily. He clenched his teeth. He rolled his head. Then he tried to speak.

My God, Trammell thought. He’s coming out of this.

Lockett lurched up against the restraints. While the witnesses looked on, he started writhing as if trying to free himself, to get up off the gurney. He struggled violently, twisting his whole body.

Autry, sitting in the viewing area, couldn’t believe it; next to him, Dean Sanderford, Lockett’s other lawyer, began to cry. Lockett got his whole head up off the gurney, as far as the restraints would let him go. He kept trying to speak but couldn’t form the words, and he rolled his head back and forth.

It took 45 minutes to kill Clayton Lockett. Personally, I remember the Lockett execution because the sheer weight of its f**kuppery was live Tweeted to the world and the incessant buzzing of my phone that night was impossible to ignore.

Perhaps I could have ignored it if I were Justice Alito, who dismissed the botched midazolam-related executions of Lockett and Arizona’s botched execution of Joseph Wood:

[P]etitioners argue that difficulties with Oklahoma’s execution of Lockett and Arizona’s July 2014 execution of Joseph Wood establish that midazolam is sure or very likely to cause serious pain. We are not persuaded. Aside from the Lockett execution, 12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems.

Well then. A 12-2 record! That’s good enough to get you into the NFL playoffs! I mean, if the NBA is a valid argument for housing discrimination for this august body, why not? And the expert defending midazolam in the face of empirical evidence is not appreciably different than the Deflategate deniers. Welcome to the jurisprudence of professional sport.

Moreover, Lockett was administered only 100 milligrams of midazolam, and Oklahoma’s investigation into that execution concluded that the difficulties were due primarily to the execution team’s inability to obtain an IV access site.

The lower dosage of midazolam would be a good argument, except it was specifically refuted by another expert who noted that midazolam has a “ceiling effect” where an additional dose produces no greater effect. But he couldn’t say exactly (“about 40-50 milligrams”) where that occurred, so Justice Alito agreed with the district court in dismissing the testimony — even though the expert could testify that the effect kicked in well below 100 milligrams. The IV access point is a convenient excuse, but proves too much — if midazolam is intended to block the muscles from moving to communicate pain and suffering, then missing the vein powerfully demonstrates that there’s a high risk — when coupled with the “ceiling effect” — that the other drugs in the cocktail are exacting cruel and unusual punishment that we are incapable of observing.

Meanwhile, Wood’s execution used a different second drug. Which is a reason why it cannot support a case against the death penalty writ large, but it’s not clear why that matters if the question were limited to midazolam. Alas, Justice Alito does not see fit to dignify these pesky facts with thorough analysis, limiting the whole discussion to a single paragraph.

But his paltry defense of Oklahoma’s method as “humane” on its merits renders the opinion all the more troubling, because, instead, what drives the Court’s opinion forward is Oklahoma’s shoulder-shrugging:

Petitioners… have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used. Instead, they argue that they need not identify a known and available method of execution that presents less risk. But this argument is inconsistent with the controlling opinion in Baze, 553 U. S., at 61, which imposed a requirement that the Court now follows.

Between an unrelated FDA shutdown of the primary producer of a popular death penalty drug, an export ban from key European producers, and pharmaceutical companies generally deciding that it’s bad publicity to have their names attached to the engine of death, it’s increasingly difficult for states to find the drugs used in lethal injections. In fact, that’s the only reason midazolam is even in the mix.

And thus, Justice Alito’s argument is “well, they can’t buy a non-cruel drug so…” Astounding. Alito is actually saying that if all pharma companies stopped carrying these drugs, having Ser Illyn take heads is viable under the Eighth Amendment.

A popular trope in conservative circles is the liberal reliance on “moral relativism.” One need look no further than Friday to find examples of right-wingers beating this drum. And yet, here a majority of the Court — joined by Friday’s Prodigal jurist, Justice Kennedy — set the standard for the three-word phrase (from a 16-word Amendment, mind you, as opposed to a 900-page statute) “cruel and unusual” at mere situational ethics. Cruelty is judged as, “the best they can do under the circumstances” and the unusual can overlook that no one ever dreamed to do it this way — and with such uncertainty — until recently. For anyone still clinging to a conservative judicial philosophy, the idea that a value enshrined by the Founders is no more than a benchmark to measure against the most expedient alternative is a chilling conclusion.

Perhaps Justice Scalia was right last week, because if this decision doesn’t smack of “moral relativism” then “words no longer have meaning.”

(The full opinion, including concurrences and dissents, available on the next page…)

The Cruel and Unusual Execution of Clayton Lockett [The Atlantic]
Clarence Thomas Can’t Tell A Basketball Court From A House [ATL Redline]
Hacks Desperately Try To Disprove Deflategate [ATL Redline]