Opinion: Justice Sotomayor questions deference to lower courts in death penalty cases

The state of Oklahoma killed a man Thursday night, the first since it botched the execution of another convicted murderer last year. This time, state officials said they would get it right, though the condemned man’s protestation that “it hurt. It feels like acid,� suggests that maybe they didn’t.

My opposition to the death penalty has been persistent, and consistent. As has my belief that if states are going to continue with this willful act of vengeance, they must be transparent about the process and not violate the Constitution’s protection again cruel and unusual punishment.

Lawyers for Charles Frederick Warner, convicted of raping and murdering his girlfriend’s 11-month-old daughter, appealed to the Supreme Court to intervene on grounds that there were too many unknowns about the method of execution, and strong evidence that it would deliver excessive pain. The court turned them down by a 5-4 vote. Yet in that rejection there was, perhaps, a glimmer of hope for a more progressive and humane decision by the court down the road, at least as far as the controversial use of a compound called midazolam in the three-drug executions is concerned.

The drug was involved in three executions that went awry last year (though they are hardly the only ones), and the evidence is thin that it sufficiently sedates the condemned to avoid suffering as the second and third injections kill them. In Arizona, it took two hours for James Michael Woods to die using a protocol that included midazolam.

So why the glimmer of hope? It comes from Justice Sonia Sotomayor’s dissent, which prods the court to take a closer look at the constitutionality of execution protocols given what seems to be clear scientific evidence that midazolam does not sedate to the extent that state executioners say it does. She also urges less deference to the lower courts when points of fact invite skepticism, as in the suspect defense of midazolam as a powerful sedative (the state’s expert witness “cited no studies, but instead appeared to rely primarily on the Web site www.drugs.com for his research.�). The full dissent is here, but I’ve included a key portion below:

“I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol. It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain. Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

“I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. I hope that our failure to act today does not portend our unwillingness to consider these questions.�

Follow Scott Martelle on Twitter @smartelle.