Punishment, secrecy and lethal injection: a few thoughts on Glossip v Gross

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Once upon a time, punishment was a spectacle.

Eighteenth-century legal commentator William Blackstone described how a man convicted in England of treason would be dragged to the gallows, partially asphyxiated, disemboweled, beheaded and quartered, all in full public view.

Even in America, where the criminal law has never authorized death by torture, criminal punishment – capital and non-capital – was originally a public affair, drawing crowds that could number in the thousands.

Today things are different. Executions are performed behind closed doors, with few witnesses, no cameras or recording devices, and no access for the general public.

This private, hidden quality is a hallmark of modern criminal punishment. Offenders who might once have been publicly flogged, castigated or pilloried are now put in a jail cell where hardly anyone sees what happens to them.

Pillories were used as a means of public shaming. JamesDeMers/pixabay

The public no longer sees criminal offenders suffer, and for this reason, their suffering no longer attracts much public attention or concern.

Although in the past, many enjoyed the spectacle of public punishment, many were also repulsed by its sanguinary excess. As a result, movements to limit or reduce the death penalty and to reform criminal punishment enjoyed great popular support in 18th- and 19th-century America.

Public support for punishment reform is much weaker today – not, I would argue, because punishment is less harsh, but because it is less visible.

The spectacle of punishment has become an anti-spectacle.

On Monday, in Glossip v Gross, the Supreme Court upheld the constitutionality of the ultimate form of punishment as anti-spectacle: death by lethal injection.

What is lethal injection?

The lethal injection procedure challenged in this case involves three drugs: a paralyzing agent, which deprives the offender of the ability to breathe (or move at all); potassium chloride, which stops the heart; and midazolam, a sedative.

The first two drugs in this three-drug “cocktail” pose the threat of excruciating pain prior to death. The paralyzing agent, on its own, would make the offender feel as though he or she were being drowned or asphyxiated. The potassium chloride, on its own, would create pain so extreme that Justice Sotomayor characterized it as the “chemical equivalent of being burned alive.”

Together, the paralyzing agent and the potassium chloride would make the offender feel as though he were being simultaneously drowned and burned to death from the inside — a punishment whose cruelty is comparable to the fate Blackstone described for traitors in 18th-century England.

This pain is supposed to be negated by the third drug, midazolam, which is included to render the offender unconscious and thus impervious to pain.

The petitioners in Glossip v Gross argued that midazolam was not adequate to this task, and that its use created a substantial risk that the offender would suffer excruciating pain before dying.

The trouble with midazolam

Midazolam has not been approved as a surgical anesthetic and has no analgesic properties. Although midazolam can render people unconscious, there is concern that it might produce a relatively shallow state of unconsciousness, and that the offender might be jolted awake by the pain caused by the other two drugs.

The Supreme Court, in an opinion written by Justice Alito, rejected the argument that the use of midazolam created an unacceptable risk of severe pain prior to death.

The court gave great deference to the lower court’s finding that midazolam was a sufficiently powerful sedative to eliminate the risk of pain.

Justice Alito wrote that Steve Petteway

The court also held that those who object to a given method of execution have the burden to demonstrate not only that the challenged method is cruel, but also that a feasible, non-cruel alternative method is “known and available” (more on this later).

Some questions about the three-drug cocktail

One question that arises from Glossip and its predecessor case, Baze v Rees (which involved barbiturates rather than midazolam) is why we have to guess about whether offenders subjected to the three-drug cocktail experience pain.

Lethal injection has been the dominant form of capital punishment in the United States for the past several decades, and numerous people have been subjected to it. Wouldn’t we know if they were suffering?

The answer to this question is no.

Remember that one of the drugs in the three-drug cocktail is a paralyzing agent. This drug makes it impossible to breathe, but it also makes it impossible to physically respond to pain. Like the narrator in Edgar Allen Poe’s The Premature Burial, the offender subjected to the paralyzing agent is “buried alive” – not in a grave, but in his own body, unable to move or communicate his pain to others.

Why do the states use the paralyzing agent?

The combination of potassium choloride and barbiturates would be equally effective on their own. In fact, there is near-universal consensus that executions could be performed painlessly simply by using a massive overdose of barbiturates. This is precisely the method used in animal euthanasia throughout the country.

Why not, then, simply eliminate the paralyzing agent and use a one- or two-drug cocktail to perform the execution?

The reason appears to be primarily aesthetic. Without the paralyzing agent, potassium chloride may cause the body to writhe and convulse prior to death, a highly unpleasant thing to watch. But if the potassium chloride is also eliminated, the barbiturate may take a significant amount of time to kill the offender, again causing discomfort to those witnessing the execution. The paralyzing agent allows the state to kill the offender quickly without any appearance of suffering.

Appearance and reality

It’s important to notice the irony here.

The very thing used to make the death appear peaceful creates the risk of excruciating pain – both by causing the sensation of asphyxiation and by depriving the offender of the ability to communicate his pain to others.

In this sense, the three-drug cocktail is a perfect example of the modern drive toward less cruel-seeming – but not necessarily less cruel – punishments.

Capital punishment has moved from “violent” methods like hanging or the firing squad to “scientific” methods, like the electric chair, the gas chamber and lethal injection. Non-capital punishment has moved offenders from the pillory to the prison, where we cannot see their suffering.

It may be that in many instances, the older methods of punishment were less cruel than those that have replaced them. But the public has no way to judge this issue, because the new punishments are hidden from the public eye.

Alternative, feasible, non-cruel methods of execution

As noted above, the Supreme Court in Glossip held that an offender challenging the constitutionality of a method of execution has the burden of establishing that there is a “known and available,” feasible, constitutionally acceptable alternative method of execution available.

If the offender fails to meet this burden, the offender is stuck with the government’s chosen method of execution, however cruel it may be.

This holding, I would argue, is absurd on its face.

What if the government chose to burn offenders at the stake, or have them torn apart by wild beasts? Is it plausible to say that a court should uphold such punishments unless the challenger can identify a feasible alternative? To state the question is to answer it.

The real reason the Supreme Court has imposed this burden, I would argue, is that it believes (correctly) that the international death penalty abolition movement is trying to put an end to the death penalty by making constitutionally acceptable methods of execution unavailable.

Justice Alito was sufficiently concerned about these efforts that he devoted a full two pages of his majority opinion in Glossip to describing them.

Seven years ago, the Supreme Court held that certain barbiturates are sufficiently powerful to negate the risk of pain in lethal injection. Since then, the movement has convinced the barbiturate manufacturers to refuse to sell it to states for use in executions.

The movement’s success in this regard is the reason states like Oklahoma and Florida switched to midazolam in the first place. Other states have responded to the activist-induced barbiturate shortage in widely varying ways. Utah has brought back the firing squad. Nebraska, by contrast, recently abolished the death penalty within the state.

But all of this is ultimately beyond the point. If a punishment is cruel and unusual, it is cruel and unusual.

An offender should not be tortured to death because the Supreme Court does not like the strategy of those who wish to abolish the death penalty.