What Justice Breyer’s Dissent on Lethal Injection Showed About the Death Penalty’s Defenders

Alongside a flimsy majority opinion in <em>Glossip v. Gross</em>, Justice Breyer's dissent exposed just how much cruelty must be tolerated to defend the death penalty in 2015.

FILE - This May 27, 2008 file photo shows the gurney in Huntsville, Texas, where Texas' condemned are strapped down to receive a lethal dose of drugs. Texas prison officials say they’ve secured a new supply of pentobarbital that will allow the nation’s most active death penalty state to continue executions. Texas Department of Criminal Justice spokesman Jason Clark also said the prison agency is not identifying the source of the new drug inventory because of threats made against previous suppliers when they were identified as a provider of lethal injection drugs.  (AP Photo/Pat Sullivan, File)

Just after 2 a.m. on Monday, June 29 — some seven hours before the U.S. Supreme Court would reject the latest challenge to the death penalty in Glossip v. Gross — former death row prisoner Glenn Ford died in Louisiana. Ford, 65, left prison with stage four lung cancer in 2014, after spending almost 30 years facing execution for a crime he did not commit. Upon releasing him, the state gave Ford a $20 debit card and sent him on his way.

Ford sought redress for his lost decades under the state’s compensation law, only to be told that Louisiana owed him nothing. Despite the fact that Ford had been exonerated, the state attorney general said that under “the law as written,” he was not “factually innocent.” The “same set of facts” that sent him to death row for murder, the state insisted, connected him to the crime in other ways, thus disqualifying him from any financial award. Ford fought the state while fighting for his life, but the cancer, which had gone untreated in prison, prevailed in the end. Fifteen months after leaving prison, Ford died in his bed, surrounded by volunteers who had raised money online for his hospice care.

There was little reason to expect Glenn Ford’s name to appear in the Supreme Court’s ruling in Glossip. The case came out of a different state, Oklahoma, and focused on a particular contested drug within a specific (and not widely used) lethal injection protocol. In its 5-4 decision Monday, the Court concluded that this drug, midazolam, despite being linked to a number of botched executions, did not violate prisoners’ Eighth Amendment rights, because there was insufficient proof its use would necessarily put them at risk of an agonizing death. (The drug, a benzodiazepine, was chosen to replace barbiturates previously used as an anesthetic during lethal injection — for more, see my earlier coverage of Glossip here.)

But in an unusual and impassioned dissent, Justice Stephen Breyer read Glenn Ford’s name from the bench to illustrate why, putting particular execution protocols aside, the time has come to reconsider the death penalty altogether. “Last year, in 2014, six death row inmates were exonerated based on actual innocence,” Breyer wrote. “All had been imprisoned for more than 30 years.” In Ford’s case, he said, citing a remarkable mea culpa published by the Shreveport Times, “the prosecutor admitted that even ‘[a]t the time this case was tried there was evidence that would have cleared Glenn Ford.” This same prosecutor, Breyer noted, admitted that “at the time of Ford’s conviction, he was ‘not as interested in justice as [he] was in winning.’”

That the United States sends innocent people to die was only one part of Breyer’s wide-ranging  dissent. Forty pages long and rife with data and documentation, it strayed from the constitutional question of lethal injection to attack the death penalty from every angle — from the “dehumanizing effect of solitary confinement” (one thing that makes it cruel), to the ever-dwindling number of jurisdictions that continue to apply it (which makes it unusual). The conclusion was inescapable. More than 20 years after Justice Harry Blackmun ended his Supreme Court tenure with his famed declaration that “I no longer shall tinker with the machinery of death,” Justice Breyer struck a similar, if less eloquent chord. After two decades on the bench, he said, he now believes “that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual pun­ishmen[t].’”

Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, was openly mocked by his conservative colleagues. Antonin Scalia called it “gobbledygook.” Experts and the media reported it as noteworthy, but for the purpose of Glossip, largely beside the point. Indeed, for all the damning evidence it contained showing that the death penalty should be constitutionally intolerable, in practical terms, it will do nothing to prevent states from moving forward with executions.

Yet Breyer’s intervention was important in other ways. The dissent is, on its own, a powerful indictment of the death penalty as it stands in 2015 — plagued by racial bias, official misconduct, and enormous room for error. But especially when placed alongside Glossip’s flimsy majority opinion, which showed undue deference to a state that has recently tortured prisoners to death, it is a document that exposes just how much cruelty and injustice death penalty supporters must tolerate in order to defend its continued existence. Like states that have hastily adopted dubious new drugs to carry out executions by any means necessary, the Court’s ruling in Glossip was the logic of a system committed to preserving the death penalty at all costs, no matter how shaky the rationale.

When it comes to executions, this is nothing new. The Supreme Court has always found ways to uphold state killing methods as constitutional, from the firing squad to the electric chair — a fact Justice Samuel Alito, in authoring the majority opinion, bluntly presented as itself a reason to do the same this time around.

But the impact of Glossip is particularly devastating in a couple of ways. Not only did the Supreme Court uphold a new ad hoc lethal injection protocol as flawed and unscientific as any that came before it, it declared that, going forward, prisoners have no right to challenge a method of execution unless they can point to a viable alternative — a better way for the state to kill them. This “surreal requirement,” in the words of dissenting Justice Sonia Sotomayor, comes at a time when numerous death penalty states have passed laws declaring any information about their execution methods to be secret. Prisoners rightly concerned that the state plans to kill them using unreliable drugs thus cannot actually prove that the drugs are unreliable — a good way to foreclose on future legal challenges to executions.

There is another other tragically backwards result in Glossip. Lethal injection was originally devised to work in three parts: the first drug was supposed to anesthetize the prisoner, while the second drug, a paralytic agent, kept him or her frozen in place. And the third, potassium chloride, stopped the heart. It was a combination designed to makes executions look more humane on the surface — the paralytic, commonly pancoronium bromide, served no other purpose except to block any of the physical signs one would commonly expect from a person being murdered. But the insidious effect of the drug was also to mask any evidence that an execution might be going wrong, meaning that, on occasions where the anesthetic did not kick in, prisoners died agonizing deaths — akin to being burned alive — while unable to show signs they were suffering.

If there was anything positive about the drug shortages that followed the Court’s 2008 ruling in Baze v. Rees —  which precipitated the recent wave of human experimentation using new combinations of lethal injection drugs — it was that they led most states to abandon use of the paralytic agent. But now, having debated the dubious merits of midazolam as an anesthetic, while spending no time discussing the paralytic, the Supreme Court has once more upheld this three-part design. With the Court’s green light, states will inevitably seek to adopt this method. As they do, and as they pair the paralytic with unreliable drugs acquired in secret, Americans can expect more botched executions. What we don’t know is whether we will be able to tell the difference.

From the day it was argued on April 29, the one-year anniversary of the harrowing execution of Clayton Lockett — a man who writhed and moaned on the gurney as Oklahoma tortured him to death — Glossip embodied the farce of trying to defend lethal injection as a humane, more enlightened way to kill people. At the Court that morning, there was much talk of dosage rates and ceiling effects and GABA receptors — the language of biology and medical science.

Yet there was little to conceal the fact that it was ultimately a debate among lawyers, one that amounted to absurd speculation masquerading as a serious inquiry. No one could explain away the fact that midazolam is primarily an anti-anxiety medication, used to treat insomnia, or employed as a sedative for minor operations.  An amicus brief submitted by 16 professors of pharmacology warned that midazolam “is incapable of rendering an inmate unconscious” for the purpose of a humane execution. The medical expertise Oklahoma offered to the contrary came from a man who had based his research in part on ideas gleaned from the website Drugs.com, which warns it is “not intended for medical advice, diagnosis or treatment.”

Even the tale told by Oklahoma about why midazolam had been adopted in the first place turned out to be false — after oral arguments, Buzzfeed revealed that the state attorney general blatantly lied in its brief when it claimed that it changed its protocol only after a pharmacy refused to supply it with a different drug. This lie was not insignificant: Scalia and Alito made clear that abolitionists are to blame for the fact that states cannot carry out executions as they used to, because of the pressure they have put on pharmaceutical companies not to supply drugs for this purpose. This perspective underwrites the spiteful opinion in Glossip: If states are resorting to imperfect substitutes, it is only because activists have left them no choice.

In Glossip, a determination to preserve the death penalty has once more trumped the Court’s ostensible obligation to the Eighth Amendment. In the universe of the Supreme Court, “it is settled that capital punishment is constitutional,” Alito wrote, thus, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Midazolam may have been chosen for its availability rather than its efficacy. But if it’s good enough for the state of Oklahoma, it is good enough for the Court. Meanwhile, in this same universe, Breyer’s evidence-based dissent is a voice in the wilderness — “a white paper devoid of any meaningful legal argument,” in Scalia’s scornful estimation — and names like Glenn Ford are mere footnotes; collateral damage in a callous system we keep calling justice, because “the law as written” has always said that it is.

Photo: A lethal injection chamber in Texas. (AP)

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