Glossip v. Gross - Opinion Announcement - June 29, 2015 (Part 2)

Glossip v. Gross

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Audio Transcription for Opinion Announcement - June 29, 2015 (Part 1) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 3) in Glossip v. Gross
Audio Transcription for Opinion Announcement - June 29, 2015 (Part 4) in Glossip v. Gross
Audio Transcription for Oral Argument - April 29, 2015 in Glossip v. Gross

Audio Transcription for Opinion Announcement - June 29, 2015 (Part 2) in Glossip v. Gross

Sonia Sotomayor:

The Eighth Amendment prohibits the infliction of cruel and unusual punishments.

Today, the Court has distorted that essential command beyond recognition.

The Court's first error is factual.

Oklahoma plans to execute prisoners using three drugs.

Two of the drugs are intended to paralyze the inmates and stop their hearts, but the drugs do so in an agonizing manner, causing burning, searing pain.

It is thus critical that the first drug called midazolam do what it is intended to do, which is to keep the inmates unconscious.

Petitioners have presented substantial evidence that midazolam cannot serve this function.

The drug is not FDA approved to keep an individual unconscious during major operations, and there is scientific reason to think it cannot be used in this manner.

Thus, there is a very real risk that if used in executions along with the other two drugs the states intend to use the inmates may appear to be unconscious, but will actually be fully awake yet paralyzed, slowly dying in excruciating pain.

In reaching a contrary conclusion the Court relies entirely on the assertions of a state expert witness.

This testimony was premised on a complete misunderstanding of midazolam's chemical functioning that is unsupported by any scientific literature and actually contradicted by it.

This misunderstanding has even been disavowed by the state itself.

By nevertheless deferring to these unsupported assertions the Court abdicates its duty to examine critically the record and leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.

I hope that states in designing their own lethal injection protocols will pay more heed to the compelling evidence of midazolam's inadequacy than this Court has.

The second error is legal and is perhaps even more serious.

This Court has long recognized that certain methods of execution are categorically off-limits, but today and for the first time the Court turns this categorical prohibition into a conditional one.

A method of execution, no matter how barbaric, will violate the Eighth Amendment if, and only if, the condemned inmate is able to point to another available means by which the state could kill him.

Simply to describe this newly discovered rule is to demonstrate its absurdity.

Under the Court's approach it would not matter whether Oklahoma intended to use midazolam to execute the prisoners or instead intended to have them drawn and quartered, slowly tortured to death, or burned at the stake, because the petitioners failed to prove there was an available alternative, their challenge would automatically fail.

That is simply not what the Eighth Amendment says.

In accepting this surreal conclusion the Court overlooks the straightforward logic that until now guided our Eighth Amendment jurisprudence.

If a state's chosen method of conducting an execution represents cruel and unusual punishment then conducting an execution under that method will violate the Eighth Amendment.

A method of execution that is barbaric or excruciatingly painful does not become any less cruel and unusual simply because there is no other method readily available.

The contortions necessary to save this legal injection protocol are not worth the price.

I dissent.