In a split decision on Monday, the Supreme Court approved the use of lethal-injection drug midazolam, which caused at least four botched executions in 2014 and triggered a panic among death-row inmates and state officials alike. The 5-4 ruling in Glossip v. Gross saw the conservative justices, with Justice Samuel Alito issuing the opinion, siding with use of the controversial drug. The high court's four liberal justices dissented, with Justices Sonia Sotomayor and Stephen Breyer leading the dissent.
At issue in this case was the use of midazolam, an anti-anxiety benzodiazepine, in Oklahoma's experimental three-drug cocktail for lethal injections. Following a shortage of preferred lethal-injection drug sodium thiopental, Oklahoma turned to midazolam in 2014 — and witnessed the horrific execution of Clayton Lockett, who writhed and gasped in pain in the execution chamber for more than 40 minutes, according to reports from media, state officials, and relatives watching the execution at the time. The case was brought to the Supreme Court by four Oklahoma inmates scheduled to be executed in 2015; one of those inmates was executed in January days before the Supreme Court suspended all executions in Oklahoma. (Those executions have been postponed until 2016.)
But on Monday, the Supreme Court ruled midazolam did not violate the Eighth Amendment even if the drug couldn't render painlessness or a state of unconsciousness for the inmates. "The prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims," Alito wrote in the opinion.
The conservative justices also upheld the expert testimony disproving the alleged pain and suffering caused by the three-drug cocktail using midazolam. "The District Court found that midazolam is capable of placing a person 'at a sufficient level of unconsciousness,'" Alito wrote.
Dale Baich, one of the attorneys for the Oklahoma death-row inmates, said the ruling "contradicts the scientific and medical understanding of the drug’s properties." Baich added in a statement sent to Bustle:
Because the Court declined to require that states follow scientific guidelines in determining their lethal injection procedures, states will be allowed to conduct additional human experimentation when they carry out executions by lethal injection. Despite the Court's unwillingness to step in on this important issue, and given the substantial risk of harm, litigation surely will continue. We will continue to work in the courts to hold the states accountable in order to try and prevent botched executions in the future.
The petitioners argued in their brief that "the undisputed evidence here shows that midazolam cannot reliably ensure the 'deep, comalike unconsciousness' required where a State intends to cause death with painful drugs." Lawyers arguing on behalf of the four Oklahoma inmates also highlighted botched executions in the three other states that use midazolam in lethal injection cocktails: William Happ in Florida, the first time midazolam was used; Dennis McGuire in Ohio, whose execution took more than 20 minutes; and Joseph Wood in Arizona, who had the longest execution in recent history. Wood received 750 mg of midazolam, compared to the 100 mg (now 500 mg) administered in Oklahoma, and suffered for nearly two hours, according to eyewitness reports.
Petitioners contended midazolam had a "ceiling effect" — which means increasing the dosage has no effect — and that midazolam has been rejected for anesthetic use. Alito rejected those arguments. "Testimony from both sides supports the District Court's conclusion that midazolam can render a person insensate to pain," Alito wrote.
Because capital punishment is constitutional, the high court ruled, there must be a constitutional (i.e. not cruel or unusual) means of carrying out executions. However, Alito and his four fellow justices believe there's a difference between cruel and painful, and it's not enough that four out of roughly one dozen executions using midazolam resulted in excruciating deaths. "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," Alito wrote in the opinion. "Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether."Sotomayor, in her dissent, challenged that idea. "If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment," she wrote. "Nothing compels a State to perform an execution."Sotomayor also questioned why death-row inmates were now being punished for not finding an alternative execution means, when the inmates had no hand in creating or perpetuating the current drug drought. "It is odd to punish them [the petitioners] for the actions of pharmaceutical companies and others who seek to disassociate themselves from the death penalty," Sotomayor wrote.
But perhaps what this case was truly about, in a broader sense, is the legality of capital punishment in modern-day America. In his lengthy dissent, Breyer, joined by Justice Ruth Bader Ginsburg, questioned if the death penalty was constitutional. "The circumstances and the evidence of the death penalty’s application have changed radically," since 40 years ago, when the Supreme Court upheld the death penalty, Breyer wrote. "Given those changes, I believe that it is now time to reopen the question."
This ruling exposed the emotional divide between the justices on the death penalty, with both the liberal and conservative justices accusing each other of upholding baseless medical arguments. Sotomayor, too, accused the high court for leaving the petitioners "exposed to what may well be the chemical equivalent of being burned at the stake."
Alito fired back, chastising the dissenting justices for comparing lethal injections using midazolam to being burned alive or drawn and quartered. "That is simply not true, and the principal dissent’s resort to this outlandish rhetoric reveals the weakness of its legal arguments," Alito wrote.
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