Justice Breyer’s dissent this summer in Glossip v. Gross, has sparked much-needed commentary about the death penalty’s future. Declaring his belief that capital punishment is likely unconstitutional under the Eighth Amendment “in and of itself” (meaning separate from challenges to state methods of execution), Justice Breyer outlined what he called the death penalty’s “fundamental constitutional defects”—unreliability, arbitrariness, and “unconscionably long delays” that undermine its penological purpose. He challenged defense lawyers to bring a case to the Court testing his thesis. Perhaps understandably, this pivotal dissent has eclipsed critical analysis of the Court’s 5-4 decision in Glossip, which upheld Oklahoma’s lethal injection protocol under the Eighth Amendment. But the majority opinion in Glossip says some troubling things about state violence that warrant closer examination. Thus, in this post, I focus not on the death penalty’s vulnerability, but rather on the implications of Glossip’s disastrous test for assessing methods of execution under the Eighth Amendment and its potential implications for constitutional doctrines applicable to state uses of force more broadly.
As I sketch out below, Glossip, provides that a State’s method of execution may be constitutional even if it creates a substantial risk of severe pain, so long as an alternative less painful measure is not readily available at the time of a challenge. This analysis ignores that, as a practical matter, foregoing an execution until it can be accomplished without a “substantial risk of severe pain” is necessarily always an option available to the State. It thus incorporates a de-facto exigency consideration within Eighth Amendment jurisprudence and allows the State to carry out painful deaths. I provide some initial thoughts about this issue, but first provide necessary background on Glossip.