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A Death Penalty Case, or Just Bullying?

High Court’s conservatives bridle at ‘guerilla’ tactics of ‘abolitionist’ movement.

The United States Supreme Court Wednesday morning heard oral argument about the lethal injection procedures Oklahoma wants to use on the condemned. The argument was supposed to focus on whether the method prison officials now use — a cocktail that generated a botched execution exactly one year ago of a man named Clayton Lockett — violates the Eighth Amendment rights of prisoners to be free from “cruel and unusual” punishment.

What the argument actually did focus on, for long stretches of time, was the concern expressed by Court conservatives that they are being bullied by what Justice Samuel Alito called the “guerilla” tactics of the capital abolitionist movement. Below is a seven-page passage from today’s argument, a particularly ferocious debate that highlights the extent to which the justices are divided on one of capital punishment’s freshest and most litigated issues: how (and not whether) the state can lawfully kill.

The lawyer trying to maneuver through the shoals of the justices’ questions is Robin Konrad, representing a group of death row prisoners challenging Oklahoma’s protocols. The complete transcript is here.

JUSTICE ALITO: Yes. I mean, let's be honest about what's going on here. Executions could be carried out painlessly. There are many jurisdictions ­— there are jurisdictions in this country, there are jurisdictions abroad that allow assisted suicide, and assume that those are carried out with little, if any, pain. Oklahoma and other States could carry out executions painlessly.

Now, this Court has held that the death penalty is constitutional. It's controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They're free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

Now, what is your response to that?

MS. KONRAD: Well, Justice Alito, the purpose of the courts is to decide whether a method of execution or the way that the State is going to carry out an execution is, in fact, constitutional, and it­­ — whether we're going to tolerate — ­­is it objectively intolerable to allow the States to carry out a method in this way. And so ­­—

JUSTICE SCALIA: And I guess ­­— I guess I would be more inclined to find that it was intolerable if there was even some doubt about this drug when there was a perfectly safe other drug available. But the States have gone through two different drugs, and those drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs.

And now you want to come before the Court and say, well, this third drug is not 100 percent sure. The reason it isn't 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as — as relevant to the decision that — that ­you're putting before us?

MS. KONRAD: Justice Scalia, I don't think that it's relevant to the decision as to what's available because what this Court needs to look at is whether the drug that the State is intending to use to cause what they say is a ­­— put the prisoner in a — ­­ in a place where he will not feel pain, that that drug is good enough. This drug is anything ­­—

JUSTICE SOTOMAYOR: Counselor, I ­­ —

JUSTICE GINSBURG: Is any State ­­— is any State using a lethal injection protocol without this questionable drug? We know that two are not available. Is there another combination that has been used by States that doesn't involve this questionable drug?

MS. KONRAD: Yes, Justice Ginsburg. And, in fact, there have been 11 execution using pentobarbital just this year by other States.

JUSTICE SCALIA: But is that ­­—

JUSTICE KENNEDY: That doesn't answer Justice Scalia's and Justice Alito's question. The question is: What bearing, if any, should we put on the fact that there is a method, but that it's not available because of ­­ — because of opposition to the death penalty? What relevance does that have? None?

MS. KONRAD: Justice Kennedy, the fact that the State chooses a certain method should not — ­­should not have bearing on whether that method is constitutional.

JUSTICE SOTOMAYOR: Counsel, if there is no —

JUSTICE KENNEDY:­ I — I would like an answer to the question. You've been interrupted several times, and you still haven't given — ­­is it relevant or not?

MS. KONRAD: No. It's not relevant. The availability of another ­­—

JUSTICE SOTOMAYOR: There are other ways to kill people regrettably.

MS. KONRAD: There are, Justice Sotomayor.

JUSTICE SOTOMAYOR: That are painless. It doesn't have to be a drug protocol that we elect that has a substantial risk of burning a person alive who's paralyzed, correct?

MS. KONRAD: That is correct, Justice Sotomayor.

JUSTICE SOTOMAYOR: I know that you'll get up and argue that those other ways are — are not constitutional either potentially, but people do that with every protocol. But the little bit of research I've done has shown that the reason people don't use the other methods it's because it offends them to look at them. Like you could use gas, that renders people not even knowing that they're going to sleep to die. And people probably don't want to use that protocol because of what happened during World War II. But there are alternatives. Oklahoma has found some. It's —­ it can use the — ­a firing squad now.

So I don't know what the absence of a drug, what pertinence it has when alternatives exist.

MS. KONRAD: I would agree, Justice Sotomayor, that ­­—

JUSTICE GINSBURG: Doesn't — ­­doesn't a firing squad cause pain?

MS. KONRAD: Justice Ginsburg, we don't know ­­— we don't know how, if the State chose to carry out an execution by firing squad, whether, in fact, it would cause — ­­rise to the level of unconstitutional pain and suffering under the Eighth Amendment.

CHIEF JUSTICE ROBERTS: Well, you don't know. Do you have a guess? I mean, is there a reason that the States moved progressively to what I understand to be more humane methods of execution? Hanging, firing squad, electric chair, death — ­­you know, gas chamber?

MS. KONRAD: Yes.

CHIEF JUSTICE ROBERTS: And ­— and you're not suggesting that those other methods are preferable to the method in this case, are you?

MS. KONRAD: I'm not suggesting that, Mr. Chief Justice, but the reason why States moved to more humane methods is, as we learn more, and as we learn more about science, and develop, then, as a society, we move forward. We have evolving standards of decency.

CHIEF JUSTICE ROBERTS: But you have no suggestion as what —­­ to what would be an acceptable alternative to what you propose right now for Oklahoma. Do you have any — ­­I mean, the case comes to us in a posture where it's recognized that your client is guilty of a capital offense, it's recognized that your client is eligible for the death penalty, that that has been duly imposed. And yet you put us in a position with your argument that he can't be executed, even though he satisfies all of those requirements.

MS. KONRAD: I would ­­—

CHIEF JUSTICE ROBERTS: And you have no suggested alternative that is more humane.

MS. KONRAD: I would actually disagree with the characterization that it's ­— that he can't be executed. Oklahoma has just passed a new statute, and they are continuously looking for methods and ways to —­­

CHIEF JUSTICE ROBERTS: What does the new statute provide?

MS. KONRAD: The new statute provides that if the lethal injection protocol is found unconstitutional, or drugs are unavailable, then they can go to other methods.

CHIEF JUSTICE ROBERTS: What other method?

MS. KONRAD: They go to nitrogen gas, and then go to —

CHIEF JUSTICE ROBERTS: And are you suggesting that that's okay with you?

MS. KONRAD: I'm not — ­­I don't know anything about that protocol. They have not —­­

CHIEF JUSTICE ROBERTS: Well, what do you think? Do you have an instinct about whether or not the gas chamber is preferable to this lethal injection or not?

MS. KONRAD: Mr. Chief Justice, it's hard for me in the abstract to say whether it's preferable. The ­­ — the legislature has said that this could be a painless method. I don't know —­­ they haven't come out with any information about how it will be carried out.

JUSTICE BREYER: Suppose it were true —­­

JUSTICE SCALIA: If I understand the facts here, your client was already in jail with a life sentence, right, for murder? And while in jail on that life sentence, he stabbed and killed a prison guard, and that's the crime for which Oklahoma is seeking to execute him. That's the facts we have before us, isn't it?