It was a zinger worthy of a Presidential debate (and almost certainly just as planned). Justice Samuel Alito, confronted Federal Public Defender Robin Conrad in the midst of her oral argument on April 29 in Glossip v. Gross, a case challenging Oklahoma’s lethal injection execution procedure.
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 I 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?
The diatribe won the lions share of media attention on the case and much of it seemingly approving. The stunning nature of his attack on our adversary system has gone little remarked. Indeed Justice Alito seemed to be refreshingly candid (Chris Christie style): “let’s be honest about what’s going on here.” He appealed to his media audiences common sense that executions could be carried out painlessly (although four of his colleagues doubted that the last time SCOTUS reviewed lethal injections in Baze v. Rees). He acknowledged that abolitionists have been making significant political progress lately winning legislative abolitions, with “red” Nebraska only the latest state legislature to express a desire to rid the law of capital punishment. He invited direct challenge to the constitutionality of the death penalty: an invitation that might have seemed totally empty a few years ago but now seems to have increasing constitutional force (see Jones v. Chappell finding the California death penalty unconstitutional on grounds of being arbitrary and capricious).
But behind this this seemingly candid and refreshing acknowledgment was a remarkable attack upon a lawyer doing exactly what lawyers are supposed to do: zealously advocating for her clients. Justice Alito (echoed by Justice Scalia) cast Federal Public Defender Conrad and her colleagues as duplicitous, pleading the terrible risk of pain facing their clients while working behind the backs of the courts and states to deny states access to chemicals that could painlessly cause death and thus subverting the honorable workings of justice. Absolutely no evidence is presented or even suggested for this conspiracy. In fact, it is a mirror image of reality. The problems American states are confronting in finding drugs to make lethal injections look kind and gentle lie in a growing global movement against capital punishment in which America is increasingly seen as part of an anti human rights “axis” along with Iran, China, and Saudi Arabia. Federal public defenders (and indeed many other Americans) may well sympathize with this global movement but they are hardly relevant to that movement. As Justice Alito must surely know, the European Union-our major trading partner and political military ally and the site of many of the world’s leading pharmaceutical producers---are legally bound to oppose the death penalty where ever it exists. Federal public defenders are even more irrelevant to the completely understandable fact that many businesses will need no additional reason other than publicity to choose to disassociate their products from the deliberate killing of human beings.
The real guerilla war is being waged by death states that continue to pursue executions even as crime remains at historic lows and public opinion turns against this archaic ritual. Many of these states are making a farce of the Court’s own decades long effort to forge a more legal and more humane death penalty by using all means, legal or otherwise, to acquire execution drugs; and obstructing prisoners and their advocates from discovering even the most basic scientific facts about how the state proposes to take their lives. Meanwhile the death penalty majority on the Supreme Court has fought its own battle to prevent continued judicial oversight of state executions. Indeed, the first named petitioner in the case in which Justice Alito delivered his appeal for honesty was executed earlier this year even as the issue he raised was scheduled for Supreme Court argument.
Justice Alito is correct that the times are changing rapidly for the death penalty. In retrospect, the rejuvenation of capital punishment in the 1970s after a couple of decades of declining public support may have had more to do with the high violent crime rates and toxic racial politics of that era---conditions that have changed in many respects---than any core American commitment to capital punishment. Serious challenges to the constitutionality of the death penalty may soon find themselves before the SCOTUS. One can only hope that Justice Alito will bring a less closed mind to those arguments than he did to the ones Federal Defender Robin Konrad (and Justice Sotomayor) presented him in Glossip.
It is our common law tradition that judges are to consider the fate of litigants one at a time, and answer the compelling legal questions that their treatment poses. Yet in his exchanges with Ms. Konrad Justice Alito showed an injudicious interest in capital punishment as an institution. In his willingness to defend the death penalty (and his even odder insistence that if it is to end, it must receive the presumably more honorable dispatch of a direct constitutional assault) Justice Alito seems to be more committed to that institution than to our Constitution.
Justice Alito’s passion for the death penalty recalled for me the curious character of the "Officer” who conducts a “Traveler” to witness the execution of a condemned prisoner in Franz Kafka’s haunting story The Penal Colony. The story, set in a little described “penal colony,” involves an execution ritual in which the condemned are placed into a complex machine known as the “harrow” that effectively kills them by slowly inscribing the name of their crime into their body with metal needles as they are rotated within the harrow. The harrow requires constant tinkering which the Officer enthusiastically supplies. The Officer acknowledges to the increasingly uneasy Traveller that the colony’s commitment to this strange ritual is in fact waning fast, but he remains so loyal to it that he abandons all restraint and ultimately even self preservation in attempting to obtain for it at least one last victim.
Like the penal colony’s harrow, our execution machinery needs constant tinkering, both technical and legal. Some Justices, Harry Blackmun and John Paul Stevens, once supporters of the death penalty, eventually renounced “tinkering with the machinery of death” and denounced the penalty as irreconcilable with commitment to the rule of law. More Justices soon must make clear that their decades long servitude to this institution must come to an end. But perhaps the last will be Justice Alito, who like Kafka’s Officer seems increasingly willing to depart from his role in order defend the machinery of death against law itself.
cross posted on prawfsblawg