The Supreme Court released a decision in favor of the death penalty status quo. But the dissent could be enough to open a new door.

Photo Credit: Rep. Virginia Foxx cc
Photo Credit: Rep. Virginia Foxx cc

The 5-4 decision to uphold the use of midazolam as a lethal injection drug is seen by many as a “crushing blow” to opponents of the death penalty. But in one way, the Justices’ just opened a door on a changing tide.

The case finds its roots in Clayton Lockett, an Oklahoma man who was sentenced to death in 2014. After the injection of midazolam was administered, witnesses said he “struggled violently, groaned, and writhed” for minutes, ultimately dying 43 minutes after his execution began. The sedative was also involved in two other long and apparently painful executions last year.

The last time SCOTUS took on the death penalty was in 2008’s Baze v. Rees, which found that an execution method would be considered “cruel and unusual punishment” if it created a “substantial risk” that the prisoner would suffer pain. Under that precedent, four Oklahoma death row inmates brought their case that lethal injection—with its high rate of error—constituted cruel punishment.

Unfortunately the majority didn’t agree with them. Their view was that the petitioners had largely failed to adequately prove their claims. Justice Samuel Alito’s opinion largely focused on the fact that the death penalty is part of the U.S. justice system, and as such there must be a way to execute inmates:

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.

But Justice Stephen Breyer penned his own dissent, joined only by Justice Ruth Bader Ginsburg, questioning the constitutionality of the death penalty to begin with, even going as far as to say that he believes it is “highly likely the death penalty violates the Eighth Amendment.”

For Terry Lenamon, a criminal lawyer specializing in death penalty cases, that’s just the crack that anti-death penalty activists need.

“I think there’s a group of Justices that are stuck in the position [of being pro-death penalty] that they take such a strong position of support, even as our society evolves in—for lack of a better word—decency,” said Lenamon, who also authors the Death Penalty Blog. “The dissent goes beyond that by opening the possibility that the death penalty is slowly working its way out. Two of the Justices clearly wrote a number of different things outside the lethal injection issue, about how it’s problematic on so many levels.”

Which is already an increasingly common opinion: Though the death penalty is still fairly widely popular (60 percent support) with the American public, it’s been trending down over the past few years—reaching the lowest point in 40 years in 2013.

Which is not exactly surprising, given that the FBI and Department of Justice admitted that their lab had practiced dodgy DNA science for decades, eroding public trust in the matter. In April, the FBI announced that of the 250 cases they had reviewed thus far (out of 2,500 identified initially) there were errors in 95 percent of them.

“These guys went around saying ‘we are the world’s best forensic laboratory,’ they get millions of dollars from Congress a year to go into court and convict people for the rest of their life. A lot of these people were convicted of death penalty cases; some of these people who were convicted on death row have been executed,” said David K. Colapinto, author on The Whistleblower Blog and attorney with Kohn, Kohn, & Colapinto at the time.

In the meanwhile DNA testing has come along, increasingly being used by groups like The Innocence Project to exonerate convicted criminals—many of whom were on death row.

Part of the reason this case made it to the Supreme Court was specifically that the death penalty had fallen out of favor with pharmaceutical companies making key drugs for lethal injections. They began refusing to supply drugs for injections around 2010, whether out of protest or worry about associating their products with executions, leading states to start looking for new—and sometimes untested—methods.

For Lenamon, this is only the beginning for anti-death penalty grassroots organizations, post-conviction lawyers, and politicians to get in the game and possibly capitalize on the changing opinion towards the death penalty. He knows for a fact that in the very short time the opinion has been out, lawyers are already absorbing the language of the minority and beginning to litigate based off of that language. That dissent could lead to something big.

“It could force Justices (or the Justice who’s the fly person) to reevaluate their opinion…and evolve to the understanding that statistically there’s an arbitrariness [to the death penalty] that involves things like racism or access to a good lawyer,” said Lenamon. “Especially with these two judges that came out absolutely in their opinion, it’s a wake-up call for everyone that this is an issue that needs to continue to be scrutinized…Maybe that would lead to one Justice having the courage to do what’s right, and say that this is a barbaric and horrendous way for society to deal with people they hate the most.”