A controversial sedative can be used as the first in a lethal drug cocktail to carry out the death penalty, the U.S. Supreme Court ruled Monday. The decision upholds the continued use of a chemical that has been at the center of a series of botched executions that have drawn increased scrutiny over how states handle capital punishment.
In the case Glossip v. Gross, the question before the Supreme Court was whether a sedative called midazolam effectively made an inmate unconscious before executioners administered lethal doses in a three-drug cocktail. Three convicted killers in Oklahoma brought the challenge, their lawyers arguing that there is no guarantee that midazolam will work, creating a substantial risk of causing severe pain or complications.
In a 5-4 ruling, the court was not swayed by the challengers’ argument that the use of the drug could amount to cruel and unusual punishment, violating the death row inmates’ Eighth Amendment rights. Justice Samuel Alito wrote the majority opinion for the conservative justices and Justice Anthony Kennedy, finding also that the prisoners failed to identify alternative methods of execution that would not incur substantial pain.
Justices Sonia Sotomayor, Ruth Bader Ginsburg, Elena Kagan and Stephen Breyer dissented. Writing on their behalf, Sotomayor criticized the science presented before the lower courts as evidence in whether there is a ceiling to when midazolam remains effective. Sotomayor saved her most scathing critique for the state’s key expert, whose testimony relied on “extrapolations” from reading an entry about midazolam on Drugs.com.
Given the court’s decision, the three inmates challenging Oklahoma’s capital punishment protocols will now likely be executed, an outcome that Sotomayor says leaves them ”exposed to what may well be the chemical equivalent of being burned at the stake.”
The imagery of “being burned alive from the inside” was heavily on display during oral arguments in April in what court observers described as an uncharacteristically heated hearing inside the court. The conservative justices on the bench questioned broadly whether challenges to lethal injection drugs and procedures were a backdoor attempt to abolish the death penalty. Calling the litigation tactic a “guerrilla war against the death penalty,” Justice Samuel Alito questioned whether it was appropriate for the court to get involved.
The decision will allow Oklahoma and the three other states that have used midazolam – Florida, Ohio and Arizona – to rely on the drug. States have been scrambling to obtain the lethal drugs for their scheduled executions, but have been stymied by dwindling supplies and manufacturer boycotts. But a series of high-profile executions that have gone awry has led states to reconsider alternatives to lethal injection entirely.
The most prominent botched execution occurred in Oklahoma, where convicted murderer Clayton Lockett bucked and writhed on his gurney, taking more than 43 minutes to die from the lethal drugs pumping through his veins. An Arizona execution lasted nearly two hours as witnesses said the condemned man gasped for air more than 600 times. In Ohio, a “prolonged” execution using an untested two-drug cocktail took 26 minutes to carry out.
A fourth Oklahoma death row inmate had originally signed on as a petitioner in the case. Charles Warner, convicted of murdering and raping an 11-month-old, was the first condemned man put to death since Lockett’s botched execution. As executioners administered the lethal drugs in January, Warner’s final words were “my body is on fire.”
The Supreme Court took up the case just more than a week later.
Dale Baich, one of the attorneys for the death row prisoners, said in a statement Monday that the court’s decision contradicts the scientific and medical understanding of midazolam.
“Despite the Court’s unwillingness to step in on this important issue, and given the substantial risk of harm, litigation surely will continue,” Baich said. “We will continue to work in the courts to hold the states accountable in order to try and prevent botched executions in the future.”
Though the case did not focus broadly on the constitutionality of the death penalty, it clearly was an issue on the justices’ mind. In a rare instance, they went out of their way to address the advocacy movement to abolish capital punishment. Breyer wrote a separate dissent asking the court to hold a full briefing on its constitutionality, while Justices Antonin Scalia and Clarence Thomas each countered Breyer’s assertions — at times in very personal terms.
Joined by Ginsburg in the dissent, Breyer pointed to three “fundamental constitutional defects” with the death penalty: It’s lack of reliability, arbitrary application and excessive delays that undermine its purpose. It’s those factors, ”taken together with my own 20 years of experience on this Court, that lead me to believe that the death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment,’” Breyer wrote.