Supreme Court Okays Alternative Lethal Injection Drug

In Glossip v. Gross the Supreme Court held 5-4 that death row inmates are unlikely to succeed on their claim that using midazolam as a lethal injection drug amounts to cruel and unusual punishment in violation of the Eighth Amendment.

All death penalty states and the federal government use lethal injection. In Baze v. Rees (2008) the Court approved a three-drug protocol that begins with a sedative, sodium thiopental, followed by a paralytic agent and a drug that causes cardiac arrest. Anti-death penalty advocates have persuaded United States and foreign manufacturers to stop producing sodium thiopental and an alternative, pentobarbital. So, Oklahoma and other states began using midazolam. Oklahoma increased the dose from 100 milligrams to 500 milligrams after Clayton Lockett was moving and talking after being administered 100 milligrams of midazolam. (An investigation into Lockett’s execution concluded that problems establishing IV access was the “single greatest factor that contributed to the difficulty in administering the execution drugs.”)

The prisoners claim that Oklahoma’s use of sodium thiopental violates the Eighth Amendment prohibition against “cruel and unusual punishment” because it fails to render them insensate.

In Justice Alito’s majority opinion the Court concluded that the use of midazolam does not likely violate the Eighth Amendment. First, in Baze the Court stated that prisoners challenging a lethal injection protocol must identify a known and available alternative method of execution. The prisoners in this case did not do so and claimed they did not have to. Second, the Court concluded that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam causes a substantial risk of severe pain. The inmates’ experts acknowledged that no scientific proof establishes that a 500-milligram dose of midazolam would not render a person sufficiently unconscious to “resist the noxious stimuli which would occur with the application of the second and third drugs.” While midazolam may have a “ceiling effect,” where an increased dose produces no more effect, only “speculative evidence” suggests that it renders prisoners insedate to pain.     

Receiving much media attention, Justice Breyer’s dissent, joined by Justice Ginsburg, suggests it is “highly likely” the death penalty violates the Eighth Amendment. He called for a “full briefing on the basic question” of whether capital punishment is unconstitutional.

Receiving much less attention but equally interesting is Justice Alito’s observation that Justice Sotomayor’s dissent, joined by Justices Breyer, Ginsburg, and Kagan, implies that only method of capital punishment that is constitutional is lethal injection: “[i]f States cannot return to any of the ‘more primitive’ methods used in the past and if no drug that meets with the principal dissent’s approval is available for use in carrying out a death sentence, the logical conclusion is clear.”