Bring Back the Gallows?

The Supreme Court's Cruel & Unusual Ruling

Reading between the lines of the U.S. Supreme Court’s majority decision in Glossip v. Gross, it would be easy to conclude that the recent spate of botched executions is actually the fault of death-penalty abolitionists.

In Glossip, the Supreme Court narrowly held that the three-drug cocktail used to execute prisoners in Oklahoma and several other states did not violate the Eighth Amendment’s proscription against cruel and unusual punishment. In so doing, the Court rejected the prisoners’ claims that midazolam, the drug first administered during an execution, was not consistently powerful enough to render the condemned insensate to the second drug (which paralyzes the prisoner) and the third drug (which stops the heart). The Court suggested that the choice of sedative was not to blame for Oklahoma’s horrific execution of Clayton Lockhart, who woke up moaning in the middle of the process. Instead, the problem was a faulty execution protocol, which has since been corrected by the state.

But that was not the majority opinion’s central point. Writing for the Court, Justice Samuel Alito argued that because the death penalty is constitutionally permissible, it must be practically implementable. To succeed in their claims, the prisoners must show that “the risk of severe pain presented by an execution protocol is substantial when compared to the known and available alternatives.” The word “available” is key—the Court’s aim is to prevent morally motivated market pressures from thwarting a state’s right to put criminals to death.

The trouble, from Alito’s perspective, is that two alternative drugs widely considered to be preferable to midazolam for use in execution are no longer available—thanks to people who oppose the death penalty. The original sedative used in the three-drug cocktail was sodium thiopental—a powerful and fast-acting barbiturate. Alito recounts how anti–death penalty activists pressured the only American manufacturer of the drug to cease making it domestically, and to refuse to sell its Italian-made product for use in lethal injections in the United States. In January 2011, the drug company ceased manufacturing sodium thiopental entirely. With the original drug of choice no longer available, capital-punishment states turned to pentobarbital, another barbiturate. That drug was used in all forty-three executions carried out in the United States in 2102. But the same thing happened again. Anti–death penalty advocates successfully lobbied the Dutch manufacturer of the drug to stop selling it for use in executions. With strong barbiturates no longer available, capital-punishment states turned to midazolam, a less powerful sedative in the benzodiazepine family of drugs.

The Court’s message to death-penalty abolitionists and to drug companies that refuse to be complicit in capital punishment is clear: They have not stopped executions; they have only made them potentially more gruesome. The Court’s threat is also clear: If the manufacturers of midazolam now decide to step aside, the states can always return to the firing squad or the electric chair or even bring back the gallows.

The Court’s message must be resisted, because it involves an illegitimate effort to shift moral responsibility. The blame for botched injections falls squarely on the states that impose the death penalty, not upon those who are trying to abolish it. Drug companies that refuse to provide powerful barbiturates for use in capital punishment are not responsible for the state’s decision to go ahead with less powerful drugs despite the risks, or even with alternative means of execution if drugs are no longer available. Similarly, medical professionals who give notice of their refusal to oversee an execution on moral grounds are not guilty of what happens in their absence. The state’s decision to go ahead with the execution under those circumstances is the determinative factor.

There are important moral debates to be had about what constitutes impermissible complicity with state-sponsored killing. The Catholic tradition considers this question—one of the most difficult in moral theology—under the framework of “cooperation with evil.” It requires nuanced moral analysis and fine distinctions, and often generates much disagreement among knowledgeable people of goodwill. For example, we can argue about whether a drug company opposed to capital punishment can rightly take the position that it will provide the sedatives to insure the condemned prisoner will feel no pain, but will not supply the paralytic agent or the heart-stopping dose. Some opponents of the death penalty might accept that reasoning; others might say that even providing the sedatives is too much involvement in the state’s machinery of death.

But what we can’t reasonably argue about is the moral responsibility for any decision to go forward with an execution. That falls squarely upon the state—not upon those who conscientiously refuse to provide sedatives for such a lethal purpose.

Published in the September 11, 2015 issue: 

Cathleen Kaveny teaches law and theology at Boston College.

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