The Glossip v. Gross ruling is a bitter blow for death penalty opponents. A deeply divided and acrimonious US Supreme Court ruled 5:4 last week that:
“Because the death penalty is constitutional there must be a constitutional way of carrying it out.”

Ian Millhiser of ThinkProgress makes it clear that this
“…elevates the death penalty to a kind of super-legal status that renders it impervious to many constitutional challenges.”

Morever, the ruling effectively requires defense attorneys to identify alternative means of execution if they believe the one on offer is likely to cause pain. Professor Michael Radelet, a death penalty expert, is incredulous:
“I just can’t think what they were thinking. It is not for defence lawyers to come up with new effective ways for the state to kill their clients.”

• The widespread criticism of the ruling encompasses many more points, such as:
  the majority’s dismissal of the pain caused by execution drugs;
• the majority judges’ contemptuous rejection of the dissenters’ well researched expert opinions about midazolam, the drug at the heart of the discussion;
• Justice Scalia’s irritation with research regarding the deterrent effect, if any, of the death penalty;
• The majority’s obsession with factors that should be irrelevant to the arguments (as John Stinneford concludes in The Conversation, “an offender should not be tortured to death because the Supreme Court does not like the strategy of those who wish to abolish the death penalty.” )

Many death row inmates claim innocence, among them Richard Glossip in Oklahoma (whose name is now known because of this ruling), and Jeffrey Wogenstahl in Ohio. For them Justice Scalia has cold comfort:
“any innocent defendant is infinitely better off appealing a death sentence than a sentence of life imprisonment,” as a capital convict “will obtain endless legal assistance from the abolition lobby (and legal favouritism from abolitionist judges), while the lifer languishes unnoticed behind bars.”

So, according to Justice Scalia’s pronouncements, an innocent death row inmate is fortunate because he stands a better chance of exoneration than his counterpart serving life without parole; but if the innocent death row inmate fails in his quest for exoneration and is executed that’s fine, as long as he had “a fair and full trial”.

So that’s all right then. Thank you, Justice Scalia – Richard and Jeff can breathe easy now. The death penalty is exonerated.