The state of Oklahoma can continue using the drug midazolam in its three-drug lethal injection protocol despite three botched executions in three states using that drug, the US Supreme Court ruled on Monday.
In a 5-to-4 decision, the court laid aside the earlier executions, noting that Oklahoma had increased its midazolam dosage from 100 milligrams to 500 milligrams and had adopted other safeguards to make its protocol more efficiently lethal.
The majority justices upheld a lower court decision that found that condemned prisoners in Oklahoma were not likely to suffer an intolerable level of pain during the execution process.
The case was brought on behalf of three inmates on Oklahoma’s death row who argued that use of midazolam as the first of three drugs in a lethal injection protocol posed a substantial risk of inflicting severe pain in violation of the Eighth Amendment’s ban on cruel and unusual punishment.
Writing for the court, Justice Samuel Alito rejected that argument and also ruled that the three inmates had failed to identify an available alternative execution method.
Under a 2008 death penalty decision, Justice Alito said, any death row inmate who seeks to challenge a state’s method of execution is required to identify a known and available alternative method that entails a lower risk of pain. The plaintiffs in the Oklahoma case failed to do so, he said.
In a sharply worded dissent, Justice Sonia Sotomayor said the court’s decision “leaves petitioners exposed to what may well be the chemical equivalent of being burned alive.”
“Courts’ review of execution methods should be more, not less, searching when states are engaged in what is in effect human experimentation,” Justice Sotomayor wrote.
In a separate dissent, Justices Stephen Breyer and Ruth Bader Ginsburg announced that they believe the death penalty should be declared cruel and unusual in every instance and abolished nationwide.
“In 1976, the court thought that the constitutional infirmities in the death penalty could be healed; the court in effect delegated significant responsibility to the states to develop procedures that would protect against those constitutional problems,” Justice Breyer wrote.
“Almost 40 years of studies, surveys, and experience strongly indicate, however, that this effort has failed,” he said.
“I believe it highly likely,” Breyer said, “that the death penalty violates the Eighth Amendment.”
The high court case was being closely watched in part because it arises at a time when many states with capital punishment are having difficulty obtaining sufficient quantities of key drugs used earlier to conduct “humane” lethal injections.
Two drugs, sodium thiopental and pentobarbital, are known as being fully capable of rendering a condemned inmate into a deep, unfeeling state of unconsciousness. Both drugs were routinely used as the first of three drugs in lethal injection protocols.
But in recent years, supplies of the two drugs have dried up as companies refuse to sell the drugs for use in capital punishment. States tried to obtain the drugs from compounding pharmacies, but they were pressured by death penalty opponents to refuse to fill the orders.
As a result, states have turned to a less effective drug, midazolam, to fill the void.
The question before the high court was whether the use of midazolam as the first drug in a three-drug lethal injection protocol raised an unconstitutional risk of inflicting severe pain.
Lawyers for the three death row inmates filed a lawsuit to block Oklahoma’s use of midazolam. They argued that it was unreliable in rendering a condemned inmate into a deep, coma-like level of unconsciousness before the two other drugs are injected to cause the inmate’s death.
The challengers cited three botched executions last year in Ohio, Arizona, and Oklahoma as proof that midazolam was ineffective.
In April 2014, Oklahoma death row inmate Clayton Lockett appeared to wake up after being declared unconscious following an injection of midazolam. As the other two drugs were administered, he gasped and struggled for more than 20 minutes before dying.
In January 2014, Ohio death row inmate Dennis McGuire gasped for air for nearly 10 minutes until he was pronounced dead.
And in July 2014, Arizona death row inmate Joseph Wood gasped and struggled for nearly two hours before being pronounced dead.
Lawyers for Oklahoma argued that midazolam was effective enough to render its execution procedure constitutional. A federal judge and a federal appeals court panel agreed and upheld the state’s use of the drug.
In affirming those decisions, the high court said that Oklahoma’s use of midazolam could not be compared to earlier uses of the drug in botched procedures – including a botched execution by Oklahoma itself.
The state has changed its execution procedures to incorporate certain safeguards, Alito said. In addition to substantially increasing the midazolam dosage, Oklahoma now requires the insertion of a primary and backup IV catheter, confirmation that the IV site is secure and effective, and use of an electrocardiograph and other procedures to monitor the condemned inmate’s consciousness.
Sotomayor disagreed that midazolam could be reliably used under certain circumstances in an execution. She said the drug had a “ceiling effect” in which an additional dosage would have no further impact on the condemned prisoner. Under that circumstance, she said, the prisoner would be able to feel the painful effects of all subsequent injections.
In addition, she rejected the court’s requirement that an inmate challenging an execution protocol identify a less painful execution method.
“If a state wishes to carry out an execution, it must do so subject to the constraints of our Constitution,” Sotomayor said. “Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.”
She said the court’s available-alternative requirement would produce absurd results.
“Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment – the chemical equivalent of being burned alive,” she said.
“But under the court’s new rule, it would not matter whether the state intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the state could execute them using whatever means it designated,” Sotomayor wrote.
Alito issued a reply in his own decision. “We find it appropriate to respond to the principal dissent’s groundless suggestion that our decision is tantamount to allowing prisoners to be ‘drawn and quartered, slowly tortured to death, or actually burned at the stake,’ ” he wrote. “That simply is not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments.”
Dale Baich, a member of the inmates’ legal team, expressed disappointment with the decision, but vowed to keep fighting.
“Despite the court’s unwillingness to step in on this important issue, and given the substantial risk of harm, litigation surely will continue,” Mr. Baich said in a statement. “We will continue to work in the courts to hold the states accountable in order to try and prevent botched executions in the future.”
Cornell law professor John Blume was also critical of the majority opinion. “By the barest of margins, the court has authorized states to resume executions using a combination of drugs that is demonstrably likely to result in an excruciating painful death,” he said.
“It did so by relying on bad science and conjecture,” Professor Blume said. “This decision will not end the debate over the current method of executing death sentenced inmates, nor over the continued legitimacy of the death penalty itself.”
Joining Alito’s majority opinion were Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas.
In addition to Sotomayor, Breyer, and Justice Ginsburg, Justice Elena Kagan was also in dissent.
The case was Glossip v. Gross (14-7955).