Supreme Court Makes Major Death Penalty Drug Decision

June 29th 2015

Alex Mierjeski

On Monday, the U.S. Supreme Court ruled that states facing shortages of lethal injection drugs may continue to use the sedative midazolan in the initial stages of execution in place of a traditional anesthetic. 

The decision comes after months of anticipation following April's oral arguments, which illuminated deep divides among the justices and highlighted questions about safe alternatives to the drugs and the death penalty itself. The case, Glossip v. Gross, did not consider the legality of lethal injection or the death penalty, but rather questioned what drugs are permissible and guarantee death row inmates a painless and humane execution by the state.

The drug in question, midazolam, is currently used in at least two states as the first of a three-drug cocktail, and by another two as part of a two-drug procedure, though it has only recently been scrutinized as a replacement for the traditional phenobarbital, which has steadily become more difficult for states to obtain. Typically, the first drug precedes a paralytic, and then a drug to induce cardiac arrest.

Following the gruesome execution of former Oklahoma inmate Clayton Lockett involving midazolam, three death row prisoners––Richard E. Glossip, John M. Grant, and Benjamin R. Cole (a fourth to initially file suit was executed in January after the Supreme Court rejected an appeal to stay the procedure)––argued that midazolam is incapable of producing "a deep, coma like unconsciousness" needed for a painless death, thereby violating the 8th Amendment's ban on cruel and unusual punishment. 

Lockett's was a mismanaged, drawn-out execution that resulted in what a prison warden at the scene described as "a bloody mess." After 43 minutes of trying to place in IV, executioners eventually pushed a catheter straight through an artery in Lockett's groin, filling his tissue with the drugs instead of his bloodstream, and causing the ruptured vein to squirt blood onto the administering doctor's clothing. Executioners closed the blinds and tried to call off the procedure as their patient grimaced and writhed on the gurney, lifting his head at one point to say "man," but Lockett eventually died of a heart attack nearly an hour after the procedure began.

Though there were undeniable procedural snafus in Lockett's case, prisoners and observers worried that if the first drug does not work properly, then the active drugs that follow would cause unbearable pain and suffering. At issue in the case were three main questions:

  • Whether or not a state can use a three-drug protocol is the first was scientifically determined to be incapable of "reliably produc[ing] deep, come-like unconsciousness."
  • Whether that protocol is "substantially similar" to the three-drug protocol that was upheld in a previous Supreme Court case from 2008, Baze v. Rees.
  • Whether inmates have to choose an alternative method if the preferred method is unavailable, since in the absence of a drug certified to safeguard against the risks of a three-drug protocol, the method could pose a "substantial risk of serious harm" that is "objectively intolerable," violating the Constitution, according to Baze v. Rees. 

States initially turned to midazolam as drug manufacturers began tightening exports of lethal injection drugs, or halting them altogether in protest of the procedure. Even a midazolam manufacturer wasn't pleased with Oklahoma's scrutinized use of the drug and asked them to return it. Even with Monday's ruling, which allows states like Oklahoma to continue using midazolam as they were before, opposition and even new litigation is not likely to shy away.

The Supreme Court has routinely upheld capital punishment, as well as lethal injection protocol in Baze v. Rees. But during oral arguments in April justices seemed deeply divided, with some sympathetic to the petitioners, and others claiming the case was a "backdoor" effort to undermine the practice itself. "Let's be honest about what's going on here," Justice Samuel Alito said, adding that pressure on pharmaceutical manufacturers to withhold drugs from states, then suing to block alternatives, amounted to "a guerrilla war against the death penalty[.]" 

Justice Sonia Sotomayor cited concern over a dearth of evidence on either side, expressing her doubts to Oklahoma's Solicitor General Patrick Wyrick during oral arguments. "Nothing you say or read to me am I going to believe, frankly, until I see it with my own eyes [in] context," she said, adding that without adequate medication, the procedure is like burning someone alive. 

As other states have come under public scrutiny for mismanaged executions, they have increasingly turned to methods like firing squads, gas chambers, and electric chairs to kill their death row inmates. Lawmakers in Oklahoma, for example, already pushed to use nitrogen gas to asphyxiate inmates as a backup method. The case comes as capital punishment is slowly falling out of public favor, with traditional supporters like conservatives voicing their opposition to it.