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Justice Samuel Alito: Death Is Often Painful, So Why Shouldn't Lethal Injection Be?

Brendan Hoffman / Getty Images

Opponents of capital punishment have long hoped that export restrictions on standard lethal injection drugs would either cause courts to find lethal injections unconstitutional or force states to stop performing them altogether. The Supreme Court's 5-4 decision in Glossip v. Gross on Monday casts these hopes into doubt. Writing for the majority, Justice Samuel Alito found that current lethal injection drugs, however unreliable, must be constitutional because lethal injection is itself constitutional: 

Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.

Put simply, the questionable efficacy of drug cocktails now used for lethal injection is, in Alito’s view, not cruel and unusual because death itself is essentially cruel and unusual. While these drugs may leave inmates vulnerable to excruciating pain during their executions, Alito does not find this outcome to differ enough from typical deaths to consider it relatively cruel or unusual.

Which raises a question: If death is by nature often cruel and, for each individual person, quite unusual, then perhaps the state has no business carrying it out?

While the court’s decision was ultimately disappointing, justices Stephen Breyer and Ruth Bader Ginsburg each expressed belief in their dissenting opinions that the death penalty is entirely unconstitutional, which may lend some hope to advocates campaigning against capital punishment. In the meantime, Alito’s decision holds that, because the death penalty is constitutional for the time being, inmates hoping for less cruel deaths must produce better methods of taking their own lives, or die by the uncertain methods currently available.