One dismal exception to welcome recent rulings of the U.S. Supreme Court was its majority opinion in Glossip v. Gross, a death penalty case out of Oklahoma. The case was nominally about the use of a possibly unreliable drug (midazolam) as the first in a "three-drug cocktail" – the evidence is disputed of midazolam's effectiveness in inducing deep unconsciousness (thus painlessness) prior to the injection of a paralytic followed by heart-stopping potassium chloride. The principle opinions – Justice Samuel Alito for the majority, Justice Sonia Sotomayor for the four dissenters – become quite technical in their discussion of midazolam, almost as though the issue of state homicide could be reduced to the question of the right mix of poisons. The exchange forcibly recalls the 1994 opinion of Justice Harry Blackmun, who once supported executions but had come to his declaration: "From this day forward, I no longer shall tinker with the machinery of death."

Alito has no similar scruples, and goes on at length in defending midazolam as a reasonable alternative for states left bereft by abolitionists and foreign drug manufacturers who will no longer supply them with their preferred killing agents. To do so, Sotomayor points out, he has to rely on a single state "expert" who appears to have relied "primarily on the Web site www.drugs.com " and who told the court that while he can't be certain, he believes midazolam is sufficient to the task.

Sotomayor was more dismayed by the majority's assertion (Alito was joined by Chief Justice Roberts and Justices Kennedy, Scalia, and Thomas) that if the condemned object to midazolam, they should identify a less cruel alternative. "[U]nder the Court's new rule," she wrote, "it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated." Alito could only respond, "That is simply not true, and the principal dissent's resort to this outlandish rhetoric reveals the weakness of its legal arguments."

Lightning Strikes

Alito's opinion is mild in comparison to the independently concurring opinions of Antonin Scalia (Clarence Thomas concurring) and another by Thomas (Scalia concurring). Thomas' opinion is not really a legal argument – rather a litany of heinous crimes that to him cry out for blood vengeance. Scalia is mostly concerned with insulting his colleagues and anyone else (e.g., abolitionist lawyers or judges) who dare to describe capital punishment as "unconstitutional" when it is in fact mentioned in the Constitution (in the Fifth Amendment requirement of due process).

That settles the matter for Scalia – if it wasn't cruel and unusual in the 18th century, it can't possibly be cruel and unusual now. He is content to condescend to his colleagues who, he writes, "live in a world apart from the vast majority of Americans. After work, we retire to homes in placid suburbia or to high-rise co-ops with guards at the door. We are not confronted with the threat of violence that is ever present in many Americans' everyday lives."

That hyperbolic sneer is primarily in response to the separate dissent from Justice Stephen Breyer (joined by Justice Ruth Bader Ginsburg) who, rather than quibble over drug cocktails, instead describes the administration of capital punishment as involving "three fundamental constitutional defects: 1) serious unreliability, 2) arbitrariness in application, and 3) unconscionably long delays that undermine the death penalty's penological purpose." Laying out those factors at length, Breyer concludes, "From a defendant's perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning." He calls for the court to request a "full briefing" on the essential question of the Eighth Amendment: no cruel and unusual punishments.

A False Exchange

There are not currently five votes for abolition on the court, although Breyer's opinion has led to some speculation that we may be close to a turning point. The U.S. has become an execution outlier among advanced nations, and when your companions are mostly dictatorships, it's time to seek new company. The arguments in favor of state murder traditionally focus on criminals or victims – blood cries out for blood – but the essential players in the capital punishment drama are "the state" and "the people." The state presumes to hold the power of life and death – yet the purported believers in "limited government" (including a couple on the court) also tend to be ferocious supporters of capital punishment.

The death penalty is primarily about us: If we don't have the right to kill except in immediate self-defense, how can we delegate such authority to the state, which already possesses the powers of arrest, judgment, and incarceration (for life, if truly necessary)? When we enable the state to kill in our names, we've exchanged justice for vengeance.

The Supreme Court opinions in Glossip v. Gross.