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Glossip v. Gross Oral Arguments: How Painful Is 'Painful'?

By Mark Wilson, Esq. | Last updated on

They're just gluttons for punishment, aren't they? After two and a half hours of arguments yesterday on the topic of same-sex marriage, the justices today opted for some lighter fare: the death penalty.

Richard Glossip, along with two other Oklahoma inmates, contends that the three-drug cocktail that state uses for lethal injections violates the Eighth Amendment.

What Are You Really Doing Here?

After sodium thiopental became unavailable for executions, Oklahoma switched to another drug called midazolam which hasn't been FDA approved for inducing the type of coma-like state sodium thiopental did. This fact became well publicized following several botched executions involving midazolam where inmates were obviously conscious and lucid as the other drugs in the cocktail went into effect, leading to horrific deaths.

Justice Alito took time out of the day during questioning of Robin Konrad to editorialize about the elephant in the room; namely, that sodium thiopental isn't available due to "what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs 24 that could be used to carry out capital punishment with little, if any, pain."

Alito clearly believes that it's death penalty opponents, not states, who are responsible for the current state of things; if opponents would make the less painful drug available, then states wouldn't have to resort to using less effective ones.

Tortured as that logic is, Justice Scalia pointed out its importance: Basically, he said, whenever the Court approves of a particular drug for use in the death penalty, the manufacturers of that drug make it unavailable, forcing states to try something else. And if the Court upholds midazolam, its manufacturers -- death penalty "abolitionists" -- will make it, too, unavailable. So what's a Court to do if, in a few years, we'll all be back in the same place?

She Executed Me With Science

When questioning Patrick Wyrick, attorney for Oklahoma, the justices focused almost exclusively on a question that came up during petitioners' arguments: Namely, what's the science here? In order to win, petitioners have to overcome the standard of review for factual issues on appeal, which is "clearly erroneous."

At trial, each side presented expert testimony that a 500-milligram dose of midazolam either does or does not sufficiently induce unconscious to prevent the prisoner from feeling the pain of the other two drugs. At the Supreme Court, the medical evidence piled up even further. Whom does the Court believe in the face of conflicting medical evidence? (And keep in mind that even Scalia has said before the Court does a poor job of understanding highly technical arguments.)

Most of the questioning on this issue came from the liberal wing of the Court as they -- and especially Justice Sotomayor -- tried to ferret out the truth of which studies they could believe and which they couldn't. Eventually, Justice Ginsburg conceded that it's possible they could never know; in that case, she asked Wyrick, what do you expect us to do?

Sotomayor perhaps had the answer: Given that even more evidence and studies appeared in front of the Supreme Court -- more than the district court had considered -- it would be prudent to take all this new information and mail it back to the district court for further fact-finding. That just shovels the case around without an outcome, but if there's anything the Court loves to do, it's avoid a contentious issue.

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