“A punitive impulse has controlled criminal justice in America for almost half a century,” Columbia law professor Robert Ferguson writes in his searing book, Inferno: An Anatomy of American Punishment. Surveying law, history, philosophy, and literature, Ferguson grapples with Americans’s peculiar commitment to punishment (rather than, say, rehabilitation, justice, or utility) as the aim of our justice system. “American attitudes toward legal punishment have entered a fantasy land of inconsistencies so intense that there seems to be no possible return to reality,” Ferguson told me recently.
And that was even before Governor Pete Ricketts of Nebraska threatened to begin executing prisoners more or less out of spite.
On May 27, a coalition of Democrats and Republicans in the Nebraska Legislature approved LB268, which abolishes the state’s death penalty. Ricketts had vetoed the measure, but the legislature overrode his veto. Ricketts called for a voter referendum to overturn the repeal; then he said that the state would execute the ten prisoners currently under sentence of death anyway, using sodium thiopental imported from India.* Meanwhile, Senator Bill Kintner of the unicameral legislature sought to explain his support for executions by posting a photo of a beheaded woman on his Facebook page. Let’s peel back the layers of lawlessness. Ricketts argues that the legislature cannot reduce a criminal sentence imposed by a court. Under Article IV Section 13 of the constitution, he’s probably right about the sentences. But by law, an execution also requires a death warrant, and in Nebraska only the state supreme court can issue one. The attorney general, Doug Peterson, can petition the court to set new execution dates, but it’s unlikely to do so before the law goes into effect in September.
There’s a second level: After it takes effect, LB268 doesn’t suspend lethal injection, as a court decision might; it repeals every provision that allows executions of any kind. After September, those condemned prisoners may still be formally under sentence of death; but no court will have jurisdiction to issue a death warrant, and no official will have authority to carry one out. What will Ricketts do then?
Layer three is the bootleg sodium thiopental. Ricketts says the state has ordered and paid for (but not yet received) this drug, part of the standard three-drug “cocktail” used since the 1980s for lethal injection, from a distributor named Harris Pharma, run by Chris Harris. The state bought some thiopental through Harris Pharma once before. The federal Drug Enforcement Administration seized that shipment because the company isn’t approved to sell it. (Harris had gotten it from a Swiss company by lying about what he was going to do with it.) Now the Food and Drug Administration is under a 2013 order from the D.C. Circuit to seize all sodium thiopental coming into the United States from unregistered dealers like Harris Pharma.
So what? Nebraska isn’t bound by the D.C. Circuit decision, Peterson told a newspaper; the state wasn’t a party to the case. True enough: The order binds the FDA, not the government of any state. But Eric Shumsky, who argued the D.C. Circuit case, told me that, under the court’s order, the FDA is required to seize any shipment at the border. There’s no way for Nebraska to get its drug supply—“unless they plan to smuggle it in in someone’s backpack,” he said.
The governor’s office did not return a call. Asked about the prisoners already on death row, Suzanne Gage, Peterson’s director of communications, said that “it is our intent to pursue a court determination as to their status and the ramifications of LB268 on the state’s ability to carry out the death penalty.”
The confusion in Nebraska—a cross between comic opera and banana-republic politics— follows closely on a surreal lethal-injection argument at the United States Supreme Court on April 29. The three petitioners in Glossip v. Gross have been on death row for between ten and 35 years. They did not ask the court to find them innocent; they don’t challenge the state’s constitutional power to put them to death; they ask only that the state not use untested drugs to kill them—drugs that, some evidence shows, may make their deaths as painful as being burned alive.**
Under Eighth Amendment caselaw, Glossip is a hard case. But the legalities fell away when Justice Samuel Alito asked this question: “Is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain?”
Justice Antonin Scalia elaborated that the approved “drugs have been rendered unavailable by the abolitionist movement putting pressure on the companies that manufacture them so that the States cannot obtain those two other drugs. And now you want to come before the Court and say, well, this third drug is not 100 percent sure. ... [T]he abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as—as relevant to the decision that—that you're putting before us?”
Scalia’s colloquy, along with Alito’s evident fury, was among the most bizarre I have ever seen in the Court chamber. Even The Washington Post’s George Will felt obliged to reprove his fellow conservatives: “The answers are: Public agitation against capital punishment is not relevant to judicial reasoning,” he wrote. “And it is not the judiciary’s business to worry that a ruling might seem to ‘countenance’ this or that social advocacy.” Ken Jost of Jost on Justice wrote that “Alito’s critique wrongly conjures up images of massive civil disobedience or direct action by death penalty opponents.” That hasn’t happened. In Jost’s column, University of Richmond Professor James Gibson (who has written a detailed article on the drug shortage) rejected the idea of “guerrilla warfare.” In an email, Gibson elaborated that the current shortage is “caused by political speech and foreign legislation.” Under the First Amendment, criticizing the death penalty, even effectively, is as protected as, say, corporate electioneering expenditures. Judges have no right to expect “abolitionists” to be silent—as long as they remain within the law. And on that point, I can’t find a single documented case of threatening or harassing speech by “abolitionists.” In a 2012 brief, the Texas Department of Criminal Safety called the British non-profit Reprieve “authoritarian ideologues who menace and harass private citizens” and compared them to a Texas prison gang. The TDCJ warned that “Reprieve's unrestrained harassment will escalate into violence against a supplier.” It’s been three years, and, though apparently a few pickets once showed up at a compounding pharmacy in the outskirts of Houston, the wave of violence hasn’t appeared. There don’t even appear to be any open investigations of “harassment” in Texas. It seems likely that Reprieve’s real offense is effectiveness. Among its other work, it lobbies European drug companies to keep their drugs from being used in executions; that’s the “pressure” that Scalia found so irritating. But that entirely legal use of speech works because it is in the companies’ legal interest to listen.
Why? Capital punishment is forbidden in the European Union. The EU has embargoed sale of lethal-injection drugs because EU human-rights law regards executions as a violation on a par with torture. American states are not obliged to agree; but they have no moral right to demand that EU companies break their own law. The U.S. can refuse to sell Kim Jong Un chemicals for weaponry; the EU can lawfully prohibit selling this country chemicals for killing.
Ricketts and Peterson are throwing a fit because the legislature did something they didn’t like, and they are threatening to shred state and federal law in response; Alito and Scalia threw a tantrum on the bench because the argument over capital punishment isn’t going their way.
Ferguson, in Inferno, links punitive attitudes to “pride in the claim of American exceptionalism.” Because America is special, the “exceptionalist” believes that “none of the moderate punishment regimes that exist in Europe apply in principle here,” he argues. Europe’s implied reproof—you are not stronger, you are weaker; you are not angels of righteousness, you are human-rights abusers; you are not guardians of justice, you are outlaws—enrages some powerful Americans.
More and more, across the world, the law itself condemns the use of poisons for “legal” killing. The stern mask of American justice is being stripped away; behind it we can see an angry snarl.
* This article originally stated that there are 11 inmates on Nebraska's death row; one died last week of natural causes. We regret the error.
** This article originally stated that the three petitioners did not claim to be innocent. In fact, Richard Glossip does maintain that he is innocent, although he did not present that issue in Glossip v. Gross. We regret the error.