The legal battle against the death penalty suffered a minor setback with the 5-4 decision on June 29, 2015 in the case of Glossip v. Gross with

the Court refusing to stop the three-drug protocol that is now commonly used for lethal injections in the United States. The decision could not have been surprising because back in January the same 5-4 split of the Supreme Court had refused to grant a stay of execution to one of the death row inmates who had been a plaintiff in this very litigation, thereby allowing the state of Oklahoma to execute Charles Warner at that time.

The use of lethal injection has been complicated by the refusal of European manufacturers to supply two previously used drugs that were effective in sedating the condemned prisoner – sodium thiopental and pentobarbital. At the oral argument in Glossip, Justices Alito and Scalia seemed agitated by the thought that European opposition to the death penalty should be allowed to thwart executions in the US. Alito referred to “a guerilla war against the death penalty” and Scalia scolded the plaintiffs’ lawyer saying “now you want to come before the Court and say, well, this third drug is not 100 percent sure. The reason it isn’t 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent sure drugs, and you think we should not view that as . . . relevant to the decision that you’re putting before us?”

But of course, if the use of the existing drug protocol can lead to the type of searing pain that would otherwise constitute cruel and unusual punishment, then it is legally irrelevant to how the state got into that position. The Constitution unmistakably prohibits cruel and unusual punishments, and it would be odd to rule that that prohibition could be suspended if the judgment of the rest of the developed world in opposition to the death penalty prevents us from being able to use a method of execution that would be constitutional. Presumably, if a doctor were needed to administer a lethal injection without inflicting excruciating pain and all doctors, citing the Hippocratic oath, refused to play that role, the state could not simply go ahead with the excruciating punishment.

Justice Scalia’s separate opinion expressing his enthusiasm for the death penalty reiterated some discordant themes that he has explored in the past. First, Scalia provides the obligatory reference for supporters of capital punishment to Kant, who “believe[d] that death is the only just punishment for taking a life.” Rather than buttressing the modern death penalty, the reference to Kant only shows how out of touch the thinking of that 18th Century German philosopher is to the current legal debate in America. Over 14,000 individuals per year would have to be put to death in the United States if the only punishment for taking a life was execution, and the Supreme Court has unmistakably ruled that any such mandatory application of the death penalty for murders would be unconstitutional. More importantly the people would never stand for such levels of state-sponsored killing. We have never executed more than 98 (in 1999) in a single year and only executed 35 last year. Aside from the fact that Justice Scalia frequently derides the citation to European attitudes on American legal issues, Kant’s thinking on this issue could scarcely be less informative on any question about the modern death penalty.

Second, Scalia goes on to challenge Justice Breyer’s view that the death penalty is not a greater deterrent than life imprisonment by citing a number of “statistical studies” that have been soundly denounced (in my work with Justin Wolfers and by a unanimous panel of the National Research Council). Indeed, Scalia cites a paper by Cass Sunstein for a second time, even though after the first such Scalia citation in an earlier lethal injection case, Cass Sunstein (writing with Justin Wolfers) affirmed his view that there is no credible evidence that the death penalty is a deterrent. One would hope for more from a Supreme Court justice than citations to junk science and to a paper withdrawn based on more informed consideration – especially on a matter of life and death.

The potentially most momentous claim to emerge from the opinions in Glossip was that of Justice Breyer in dissent, suggesting that it was time to have a full consideration of whether the death penalty was constitutional. Breyer appropriately cited the National Research Council report that trashed the deterrence studies that Scalia relied upon, but then went on to try to dismantle the other permissible basis for a constitutionally valid death penalty regime – retribution.

In making this argument, Justice Breyer cited my study of the Connecticut death penalty examining the 205 death eligible cases that occurred between 1973 and 2007 and the 9 that faced capital punishment, noting that

Application of the studies’ metrics made clear that only 1 of those 9 defendants was indeed the “worst of the worst” (or was, at least, within the 15% considered most “egregious”). The remaining eight were not. Their behavior was no worse than the behavior of at least 33 and as many as 170 other defendants (out of a total pool of 205) who had not been sentenced to death.

Such studies indicate that the factors that most clearly ought to affect application of the death penalty—namely, comparative egregiousness of the crime—often do not. Other studies show that circumstances that ought not to affect application of the death penalty, such as race, gender, or geography, often do.

Justice Thomas tried to respond to Breyer’s reliance on the Connecticut study by stating that “the primary explanation [the Donohue] regression analysis revealed for the gap between the egregiousness scores and the actual sentences was not the race or sex of the offender or victim, but the locality in which the crime was committed.” While Breyer found this geographic influence to be evidence of arbitrary implementation of the death penalty, Thomas thought this was not a problem. Two points should be made on this issue.

First, while geography was the single most important explanation for who received the Connecticut death penalty – far more important than the comparative egregiousness of the crime, which Breyer argued should be paramount – the second most potent factor was race (with minorities who killed whites treated far more harshly). Justice Thomas’s insinuation that racial bias was not a serious problem in Connecticut’s capital punishment regime is incorrect.

Second, the geographic factor in Connecticut was driven by the fact that the State’s Attorney in Waterbury was particularly enthusiastic about administering the death penalty. This individual was actually forced to resign in 2011 following a federal corruption investigation, which underscores that single individuals often play a huge role in generating death sentences even when their judgment can be highly questionable. The Connecticut experience with the imposition of death sentences – to individuals who the State is still trying to execute despite the State’s prospective abolition of the death penalty in 2012 — is an uncomfortable one for those who believe in a government of laws rather than a government of men.