Skip to main content

Death Penalty Abolitionists Optimistic After SCOTUS Ruling

On Monday, the Supreme Court ruled that the use of midazolam in lethal injections does not constitute cruel and unusual punishment, despite its use in a spate of botched executions. But death penalty abolitionists remain hopeful in the bigger fight to end capital punishment altogether.

Handing down the majority opinion in Glossip v. Gross, Justice Samuel Alito asserted states must have access to means of execution:

"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.

Although his statement is alarming, it does not mean that midazolam - and the death penalty itself - can't be fought in the future.

In Oklahoma, Clayton Lockett writhed in pain for 43 minutes when midazolam was administered, and Joseph Rudolph Wood similarly gasped for close to an hour. Should another botched execution occur in the future, plaintiffs may be able to fight the drug's use on other grounds.

"I would fully expect that petitioners in state and federal courts will continue to challenge methods that they have reason to believe may cause torture. The court was very clear in this case to say that its finding that midazolam was OK was in the context of what the lower court had found," Director Cassandra Stubbs of the ACLU Capital Punishment Project told ThinkProgress. "But that does not mean that's the outcome we should expect in future cases, with respect to whether or not midazolam is likely to cause pain. Midazolam has no business in lethal injection protocols. We know that it cannot do what it's supposed to do."

"The reality is that this drug doesn't do what it's supposed to do," echoed Executive Director Diann Rust-Tierney of the National Coalition to Abolish the Death Penalty (NCADP). "There's ample scientific evidence to support that. Hopefully, state officials will act responsibly and address the gap between what is asserted the drug does and what every expert says it does."

Moreover, the dissent penned by Justice Breyer and joined by Justice Ginsburg points to the unconstitutionality of the death penalty itself, and gives abolitionists serious reason to stay optimistic. Breyer wrote:

Today's administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty's penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use. I believe it highly likely that the death penalty violates the Eighth Amendment. At the very least, the Court should call for full briefing on the basic question ... For it is those changes, taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited "cruel and unusual punishmen[t].

Stubbs and Rust-Tierney interpret that skepticism as a sign that the death penalty may come under intense scrutiny in the future.

"The ACLU Capital Punishment Project represents defendants in a number of states. We will continue to advocate on their behalf. We have and will continue to look closely at arguments that the death penalty is unconstitutional under various state constitutions, and look for opportunities to put forth the kind of evidence that we saw in the dissent," Stubbs concluded.

And with public support for the death penalty on the decline, NCADP hopes to direct capital punishment opponents towards the 90 Million Strong Campaign to halt all executions - a campaign backed by a number of influential organizations, including the NAACP, Amnesty International, the National LGBTQ Task Force, and Alliance for Justice.

"States are continually on a quest to find a way of killing people that complies with the Constitution. At one point they thought the electric chair would do it; at one point they thought the gas chamber would. Now lethal injection is proving to be as problematic as all the others," Rust-Tierney explained. "Our focus is continuing to educate the public and continuing to empower the people who know this is the wrong thing. We're going to be working state by state to take this to legislators and the people.

"As Justice Breyer points out, all the evidence suggests it's time to finally end the death penalty, because it's not serving a penological purpose. It's not enhancing public safety. "

Source: thinkprogress.org, June 29, 2015


Justice Samuel Alito: Death Is Often Painful, So Why Shouldn't Lethal Injection Be?

Opponents of capital punishment have long hoped that export restrictions on standard lethal injection drugs would either cause courts to find lethal injections unconstitutional or force states to stop performing them altogether. The Supreme Court's 5-4 decision in Glossip v. Gross on Monday casts these hopes into doubt. Writing for the majority, Justice Samuel Alito found that current lethal injection drugs, however unreliable, must be constitutional because lethal injection is itself constitutional:

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.

Put simply, the questionable efficacy of drug cocktails now used for lethal injection is, in Alito's view, not cruel and unusual because death itself is essentially cruel and unusual. While these drugs may leave inmates vulnerable to excruciating pain during their executions, Alito does not find this outcome to differ enough from typical deaths to consider it relatively cruel or unusual.

Which raises a question: If death is by nature often cruel and, for each individual person, quite unusual, then perhaps the state has no business carrying it out?

While the court's decision was ultimately disappointing, justices Stephen Breyer and Ruth Bader Ginsburg each expressed belief in their dissenting opinions that the death penalty is entirely unconstitutional, which may lend some hope to advocates campaigning against capital punishment. In the meantime, Alito's decision holds that, because the death penalty is constitutional for the time being, inmates hoping for less cruel deaths must produce better methods of taking their own lives, or die by the uncertain methods currently available.

Source: New Republic, June 29, 2015

Report an error, an omission: deathpenaltynews@gmail.com

Most viewed (Last 7 days)

'No Warning': The Death Penalty In Japan

Stakes for wrongful convictions are high in Japan, where the death penalty has broad public support despite criticism over how it is carried out. Tokyo: Capital punishment in Japan is under scrutiny again after the world's longest-serving death row prisoner, Iwao Hakamada, was awarded $1.4 million in compensation this week following his acquittal last year in a retrial. Stakes for wrongful convictions are high in Japan, where the death penalty has broad public support despite international criticism over how it is carried out.

Louisiana's First Nitrogen Execution Reflects Broader Method Shift

Facing imminent execution by lethal gas earlier this week, Jessie Hoffman Jr. — a Louisiana man convicted of abducting, raping and murdering a 28-year-old woman in 1996 — went to court with a request: Please allow me to be shot instead. In a petition filed with the U.S. Supreme Court on March 16 seeking a stay of his execution by nitrogen hypoxia, a protocol that had yet to be tested in the state, Hoffman requested execution by firing squad as an alternative.

A second South Carolina death row inmate chooses execution by firing squad

Columbia, S.C. — A South Carolina death row inmate on Friday chose execution by firing squad, just five weeks after the state carried out its first death by bullets. Mikal Mahdi, who pleaded guilty to murder for killing a police officer in 2004, is scheduled to be executed April 11. Mahdi, 41, had the choice of dying by firing squad, lethal injection or the electric chair. He will be the first inmate to be executed in the state since Brad Sigmon chose to be shot to death on March 7. A doctor pronounced Sigmon dead less than three minutes after three bullets tore into his heart.

USA | Federal death penalty possible for Mexican cartel boss behind 1985 DEA agent killing

Rafael Caro Quintero, extradited from Mexico in 2022, appeared in Brooklyn court as feds weigh capital charges for the torture and murder of Agent Enrique Camarena NEW YORK — The death penalty is on the table for notorious drug lord Rafael Caro Quintero, the so-called “narco of narcos” who orchestrated the torture and murder of a DEA agent in 1985, according to federal prosecutors. “It is a possibility. The decision has not yet been made, but it is going through the process,” Assistant U.S. Attorney Saritha Komatireddy said in Brooklyn Federal Court Wednesday.

Execution date set for prisoner transferred to Oklahoma to face death penalty

An inmate who was transferred to Oklahoma last month to face the death penalty now has an execution date. George John Hanson, also known as John Fitzgerald Hanson, is scheduled to die on June 12 for the 1999 murder of 77-year-old Mary Bowles.  The Oklahoma Court of Criminal Appeals on Tuesday set the execution date. The state’s Pardon and Parole Board has a tentative date of May 7 for Hanson’s clemency hearing, executive director Tom Bates said.

South Carolina | Spiritual adviser of condemned inmate: 'We're more than the worst thing we've done'

(RNS) — When 67-year-old Brad Sigmon was put to death on March 7 in South Carolina for the murder of his then-girlfriend's parents, it was the first time in 15 years that an execution in the United States had been carried out by a firing squad. United Methodist minister Hillary Taylor, Sigmon's spiritual adviser since 2020, said the multifaceted, months long effort to save Sigmon's life, and to provide emotional and spiritual support for his legal team, and the aftermath of his execution has been a "whirlwind" said Taylor, the director of South Carolinians for Alternatives to the Death Penalty.

Inside Florida's Death Row: A dark cloud over the Sunshine State

Florida's death penalty system has faced numerous criticisms and controversies over the years - from execution methods to the treatment of Death Row inmates The Sunshine State remains steadfast in its enforcement of capital punishment, upholding a complex system that has developed since its reinstatement in 1976. Florida's contemporary death penalty era kicked off in 1972 following the U.S. Supreme Court's decision in Furman v. Georgia , which temporarily put a stop to executions across the country. Swiftly amending its laws, Florida saw the Supreme Court affirm the constitutionality of the death penalty in 1976's Gregg v. Georgia case.

Bangladesh | Botswana Woman Executed for Drug Trafficking

Dhaka, Bangladesh – Lesedi Molapisi, a Botswana national convicted of drug trafficking, was executed in Bangladesh on Friday, 21 March 2025. The 31-year-old was hanged at Dhaka Central Jail after exhausting all legal avenues to appeal her death sentence. Molapisi was arrested in January 2023 upon arrival at Hazrat Shahjalal International Airport in Dhaka, where customs officials discovered 3.1 kilograms of heroin hidden in her luggage. Following a trial under Bangladesh’s Narcotics Control Act, she was sentenced to death in May 2024. Her execution was initially delayed due to political unrest in the country but was carried out last week.

Oklahoma executes Wendell Grissom

Grissom used some of his last words on Earth to apologize to everyone he hurt and said that he prays they can find forgiveness for their own sake. As for his execution, he said it was a mercy. Oklahoma executed Wendell Arden Grissom on Thursday for the murder of 23-year-old Amber Matthews in front of her best friend’s two young daughters in 2005.  Grissom, 56, was executed by lethal injection at the Oklahoma State Penitentiary in McAlester and pronounced dead at 10:13 a.m. local time, becoming the first inmate to be put to death by the state in 2025 and the ninth in the United States this year. 

564 People On Death Row In India, Highest Since The Turn Of The Century

In 90% of of all death penalty sentences in 2024, trial courts imposed sentences in the absence of adequate information about the accused, finds a recent report Bengaluru: Following the uproar and the widespread protests after the August 2024 rape and murder of a medical professional in Kolkata’s RG Kar hospital, there were demands for death penalty for the accused. The state government passed the Aparajita Woman and Child (West Bengal Criminal Laws Amendment) Bill 2024 (awaiting presidential assent) which included mandatory death sentence for rape which results in death of the victim or if the victim is left in a vegetative state, despite such a mandatory sentence being unconstitutional.