Deborah Denno discusses the stunning dissents in Glossip v. Gross decision in Scotusblog.com. The Supreme Court held that three death-row inmates failed to establish that the drug midazolam was unconstitutional in Oklahoma’s lethal injection procedure, yet examined whether the death penalty is unconstitutional itself.
The intertwining strands conflating the issues of lethal injection with those of the death penalty itself have existed for decades, often serving as unfortunate reminders of the measures to which states will go to perpetuate executions. They also hark back to Baze v. Rees, the Court’s 2008 plurality decision upholding the Eighth Amendment viability of Kentucky’s lethal injection protocol. In Baze, Justice John Paul Stevens used his concurrence as a platform from which to question the constitutionality of the death penalty. Yet despite the power such platforms can bring, they can also fuel the oft-perceived link between litigation over methods of execution and the potential abolition of the death penalty. This link is a double-edged sword that can distract legislatures, courts, prison personnel, and indeed even the Supreme Court from examining the actual issue under consideration – the constitutionality of a state’s execution protocol.
Read the entire Scotusblog.com article here.