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Killing Them Softly, at the Supreme Court (NY Times)

By Jesse Wegman

Most of the rest of the world has moved on from the death penalty, in some cases long ago. But here in the United States, in the year 2015, in the most august courtroom in the land, nine esteemed jurists sat around for an hour and soberly debated the best way to kill someone quickly, painlessly and — perhaps most important — bloodlessly.

How deeply anesthetized must the condemned man be? What if the drugs affect his brain differently from his spinal cord? Would nitrogen gas do the job, or would that offend the nation’s delicate post-World War II sensibilities?

That’s the state of the debate these days, as both the logic and the practice of the death penalty begin to collapse inward on themselves, leaving otherwise intelligent lawyers and judges to argue at length about “ceiling effects” and clamped dog’s tails.

Perhaps the absurdity of it all accounted for the unusually testy and abrasive atmosphere at the court on Wednesday morning, the last day of the current term, as the justices heard arguments in Glossip v. Gross — a suit filed by four men on Oklahoma’s death row challenging the state’s use of a novel lethal-injection protocol that they say creates an intolerable risk of pain and suffering.

The legal question centered around the sedative midazolam, which Oklahoma uses in conjunction with two other drugs. Midazolam is supposed to serve as an anesthetic, allowing the second and third drugs to do their work without causing too much discomfort. But the parties dispute whether it in fact works as advertised. Patrick Wyrick, Oklahoma’s solicitor general, insisted that it does, citing for the justices, among other things, a study in which the drug was given to five dogs and its effect measured through a clamp on their tails. But a botched Oklahoma execution last April — during which the man being put to death woke up after being sedated, and took 43 minutes to die — suggests otherwise.

That disagreement was the subject of several extensive periods of questioning about the sufficiency of the state’s evidence.

But Justice Samuel Alito got impatient with that line of inquiry. “Let’s be honest about what’s going on here,” he said to Robin Konrad, the lawyer for the condemned men. “Executions could be carried out painlessly. There are many jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and I assume that those are carried out with little, if any, pain.”

It was a refreshing acknowledgment in a debate that is so often mired in disingenuousness. But then Mr. Alito started complaining about what he called a “guerrilla war” by death-penalty opponents who fight to keep more effective drugs out of the market, and thus force states to resort to untested methods.

Justice Antonin Scalia immediately picked up this thread, arguing that “the abolitionist movement” had rendered “perfectly safe” drugs unavailable by putting pressure on drug companies not to supply them for use in executions. He then suggested that this fact was somehow relevant to the determination of whether the drug Oklahoma is using poses an unconstitutional risk of pain. Even Justice Anthony Kennedy — who has in recent years become more skeptical of capital punishment than his conservative colleagues — jumped on board to repeat that question.

(Put aside for the moment the irony of justices who normally vaunt the workings of the free market complaining about standard market forces — that is, when the pharmaceutical industry decides, based in part on consumer pressure, not to sell its drugs to executioners. Perhaps Justice Scalia, who has been so solicitous of anti-abortion activists protesting outside reproductive-health clinics, would be less troubled if the death-penalty abolitionists had, say, stood outside the doors of those companies and sought to counsel the employees as they entered each morning?)

What the justices seemed to be saying was that the Eighth Amendment’s ban on cruel and unusual punishment might apply with less force when states killing people with substandard drugs are doing so only because the market has made “safe” drugs unavailable.

Of course, they are right that abolitionists will continue to do whatever they can to make it harder for states to carry out executions. But the Eighth Amendment does not have a “we did our best” exception. The Oklahoma protocol should be judged as all execution methods should be judged: on its own merits. (Unfortunately, the justices did not address another question they had listed for argument, about whether their 2008 ruling upholding lethal injection actually requires a death-row inmate who says that a particular method would be unconstitutional to offer the state an alternative, less painful method of killing him.)

If, as Justice Alito said, it is in fact easy to kill people painlessly, surely the American people and their representatives can find their way to approving such a method. If they cannot, then maybe the nation is closer than it realizes to joining the other 140 nations around the world that have abolished this brutal, pointless practice.

Nathaniel Brown