Amid all the progress we are still barbarians

At oral arguments, Alito was openly contemptuous of the work of death penalty opponents — many of whom work for companies that manufacture drugs that various states would like to use in their execution protocols. The reason why Oklahoma was in court seeking the ability to use a painkiller of questionable reliability in its executions is because many drug companies have refused to sell their products to states if those states intend to use them to kill a human being. During arguments in this case, Alito labeled this effort a “guerrilla war against the death penalty.”

As a legal matter, it is not at all clear why the actions of drug companies have any relevance whatsoever to a constitutional challenge to the death penalty. Drug companies are private actors, not government actors, so they are free to sell or not to sell whatever they choose so long as they comply with the law. Alito’s opinion, however, effectively punishes these drug companies for their opposition to the death penalty by holding that, should the companies continue to make their more reliable drug unavailable, then executions will just move forward with less reliable painkillers.

They key paragraph in Alito’s opinion is a declaration that, no matter what happens, there must always be a way to execute inmates:

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

Ordinarily, lawsuits claiming that a particular method of punishment is unconstitutionally cruel and unusual limit their focus to a narrow question — whether the specific method used by the state is cruel and unusual or not. With this one paragraph, Alito turns that analysis on its head. Now, there must always be a method of execution available to the state. And if the only method available inflicts cruel and unusual amounts of pain on an inmate, that’s not the Court’s problem.

As a final blow to anti-death penalty advocates, Alito effectively drafts them into the task of determining how their clients should be killed. Alito reaches his conclusion, at least in part, “based on petitioners’ failure to satisfy their burden of establishing that any risk of harm was substantial when compared to a known and available alternative method of execution.” In other words, a lawyer challenging a particular method of execution must name another, alternative method that can be used instead. Needless to say, this places attorneys who have an obligation to represent the interests of their client in a serious ethical bind.