Certain drugs used for lethal injection in the U.S. are in short supply, which is causing states to scramble to find new, often untested drugs to kill death row inmates. For the first time, the Supreme Court examined the constitutionality of a specific, very controversial drug. (Photo: Corbis)
On Monday, the Supreme Court ruled 5-4 in the case of Glossip v. Gross, deciding that it is indeed constitutional to use the controversial execution drug midazolam for death penalty sentences fulfilled by lethal injection — the same drug that was used as a sedative in botched executions over the last two years.
The Court ruled that the death row inmates who filed the case did not establish a successful claim that the use of midazolam violates the Eighth Amendment, which protects American citizens from cruel and unusual punishment by the government.
Midazolam is supposed to act as an extreme sedative, rendering an inmate unconscious and thus unable to feel the effects of the subsequent drugs that then cause paralysis and cardiac arrest. But lawyers in this case argued that it does not effectively cause the level of sedation needed to prevent an inmate from experiencing the undeniably excruciating effects of the other drugs used during the lethal injection to induce death.
The Supreme Court upholds states' use of controversial lethal injection drug.(Video: CBS News)
Justice Samuel Alito wrote in the majority opinion that “petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution.”
In a dissent that did not mince words, Justice Sonia Sotomayor said the decision effectively means that 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.”
Four separate justices read opinions from the bench, an extremely rare occurrence of public debate that reflected something new at the Supreme Court. Steve Vladeck, a law professor at American University, told CNN that this, “opened the door to frontal assaults on the death penalty.”
But we can’t truly understand this case without acknowledging the horrific details of the botched deaths that brought on the lawsuit and hearing the surprising reasons why the drug midazolam is being used in the first place.
The story of Glossip v. Gross begins with Clayton Lockett
On April 29, 2014, Oklahoma executed Clayton Lockett — who had been sentenced to death for shooting, burying alive, and subsequently killing 19-year-old Stephanie Neiman in 1999 after raping her friend — using a standard three-drug lethal injection protocol.
Clayton Lockett and his victim, Stephanie Neiman.
First, a sedative was administered to render him unconscious (which, in this case, was midazolam). Next, a paralytic was added to prevent Lockett from moving or thrashing as he died, while also stopping his breathing. Finally, he received a drug to cause cardiac arrest. In Lockett’s case, the procedure went poorly: He awoke after the administration of the midazolam, which was supposed to render him unconscious, all the while kicking his legs, panting, clenching his teeth, and flailing against the restraints. Lockett continued to struggle, eventually raising his head off the gurney completely and managing to articulate the word “Man” before eventually dying 40 minutes later.
Lockett’s isn’t the only story illustrating the alleged torture instigated by the use of an ineffective sedative in lethal injection protocols. Other inmates who have been put to death this way have called out in pain during their executions, screaming things like “They butchered me” and “I feel my whole body burning” as they died. Charles Warner — who was one of four Oklahoma death row inmates to bring Glossip v. Gross to the courts — was described by witnesses as saying, after the drugs began flowing during his January execution (but before prison officials cut off his microphone): “My body is on fire” and “it feels like acid.” Warner was on death row for the rape and murder of an infant in 1997.
Besides Lockett’s execution, “midazolam was used in several bungled executions, including the gruesome, almost-two-hour execution of Joseph Wood in Arizona and the prolonged execution of Dennis McGuire in Ohio,” Megan McCracken, the Eighth Amendment resource counsel with the UC Berkeley School of Law’s Death Penalty Clinic, tells Yahoo Health. “These botched executions demonstrate that midazolam cannot be relied upon to produce the necessary, deep anesthesia to ensure constitutional executions,” she says.
A typical lethal injection chamber in Texas. (Photo: Corbis)
Lockett’s execution may have been the fault of human error — the paramedic and doctor had trouble finding Lockett’s veins, some of the on-site equipment was prepped incorrectly, and ultimately the IV administering the midazolam, which was supposed to put Lockett to sleep, had dislodged.
And in his majority opinion, Alito wrote that “an investigation into the Lockett execution concluded that ‘the viability of the IV access point was the single greatest factor that contributed to the difficulty in administering the execution drugs.’” The investigation, which took five months to complete, recommended several changes to Oklahoma’s execution protocol, and Oklahoma adopted a new protocol with an effective date of Sept. 30, 2014. That protocol allows the Oklahoma Department of Corrections to choose among four different drug combinations — with midazolam among them.
The challenges of midazolam
Midazolam is a sedative that’s usually used before surgery to make patients feel sleepy, calm and induce amnesia. It is also used off-label to treat epileptic seizures. In lethal injection, it is administered to an inmate to put him in such a deep state of sedation, in theory, that he is rendered unconscious and thus unable to feel the effects of the third drug, potassium chloride, which induces cardiac arrest.
Deborah W. Denno, the Arthur A. McGivney Professor of Law at Fordham University School of Law and a leading expert on the legal issues surrounding the death penalty, shared with Yahoo Health that doctors she had testified with in the 1990s had tested the pain caused by potassium chloride by administering small amounts to themselves. “It’s like having a hot poker stuck in the middle of your stomach,” Denno says of their findings. Potassium chloride was previously used during surgical procedures but has since been phased out as patients who wake up from their anesthesia mid-procedure describe its effects as “torture.”
“In Glossip, the Supreme Court examined the use of midazolam in a three-drug formula. In clinical practice it is not used as a stand-alone anesthetic for painful procedures, but that is exactly how it has been used in executions,” explains McCracken. “The petitioners in Glossip argued that midazolam creates a substantial risk of severe pain, needless suffering, and a lingering death. Specifically, midazolam cannot reliably produce and maintain the surgical anesthesia necessary to ensure that an execution is humane and complies with the Eighth Amendment — which prohibits the federal government from imposing cruel and unusual punishments, including torture.”
This isn’t the first time the Supreme Court has been asked to weigh in on lethal injection. In 2008, the Court heard the case of Baze v. Rees, wherein they looked at the overall three-drug protocol for lethal injection — versus a specific drug in Glossip v. Gross — and determined that it did not constitute cruel and unusual punishment.
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“In Baze, the Supreme Court acknowledged that administration of a paralytic and potassium chloride would cause unconstitutional pain and suffering in a person who is not under surgical anesthesia,” says Denno. “It’s like burning at the stake — it’s absolutely horrible.” But in 2008, the court never questioned the fact that if an inmate were still conscious after receiving the first drug for sedation, then the effects of the second and third drugs, the paralytic and the one to induce cardiac arrest, would in fact be torturous and unconstitutional.
In his concurring opinion, Justice Antonin Scalia begins, writing, “Welcome to Groundhog Day. The scene is familiar: Petitioners, sentenced to die for the crimes they committed (including, in the case of one petitioner since put to death, raping and murdering an 11–month-old baby), come before this Court asking us to nullify their sentences as “cruel and unusual” under the Eighth Amendment. They rely on this provision because it is the only provision they can rely on. They were charged by a sovereign State with murder. They were afforded counsel and tried before a jury of their peers — tried twice, once to determine whether they were guilty and once to determine whether death was the appropriate sentence. They were duly convicted and sentenced. They were granted the right to appeal and to seek postconviction relief, first in state and then in federal court. And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give.”
Scalia’s words echo a tone and argument that are present throughout Alito’s majority opinion: Because the court found that the use of a three-drug protocol was in fact constitutional when they ruled in the case of Baze v. Rees, the petitioners in the Glossip case failed to meet the burden to prove otherwise.
Both Scalia and Alito also make evident that because the death penalty itself has been determined to be constitutional, it is difficult to argue that a specific method of execution is particularly “cruel and unusual” since, perhaps, that could be said of death itself, forming a self-affirming paradox in which the justices imply that it would be all but impossible to deem any form of the death penalty unconstitutional given the legality of the death penalty.
Death, itself, is a cruel punishment — but a legal one.
Midazolam is used because there are shortages of lethal injection drugs
In 2008, when the Court heard Baze v. Rees, sodium thiopental was used as the sedative drug in states utilizing the three-drug cocktail. But the American manufacturer of sodium thiopental, Hospira, stopped producing the drug a few years ago, and manufacturers in Europe do not want to supply the drug to states if it will be used in executions.
So states are left to scramble for drugs that can act as an anesthetic like sodium thiopental.
Today, four states use midazolam in the three-drug cocktail for lethal injection: Oklahoma, Florida, Arizona, and Ohio. And the only reason why Oklahoma and Florida today use midazolam is that it’s the only drug available, simply because drug companies frequently run out of or stop manufacturing drugs based on supply and demand.
“It’s like rooting through your kitchen cabinets looking for an aspirin and taking anything that happens to be there,” says Denno of the use of midazolam as the sedative used in current three-drug-cocktail lethal injection administration. It is simply what these states have “turned to out of desperation just to keep executions going.”
In fact, the drug shortage has become such a problem that three states recently passed laws allowing for alternative execution methods if lethal injection drugs are unavailable. In November 2015, Oklahoma will allow for the use of nitrogen gas asphyxiation. Tennessee allows for the use of the electric chair. And Utah now allows a firing squad to be used if the state cannot obtain lethal injection drugs 30 days before an execution, according to the Death Penalty Information Center.
There’s no way to test lethal injection drugs
The question regarding the constitutionality of specific drugs for lethal injection underscores one of the most problematic issues surrounding the death penalty in general. There is no way to truly test any means of execution before subjecting an inmate to it, especially when it comes to lethal injection, where drugs manufactured for one purpose are put to use for another based on conjecture and extrapolation.
“It’s an evil call,” says Denno regarding lethal injection, adding that it’s a “human experiment because we don’t know how it’s going to work.”
“You can’t use the second or third drugs [in the three-drug protocol] on an animal in this country” when putting it down, adds Denno. “The American Veterinary Association will not allow that. But we allow it for human beings. So, we can’t even test these drugs on animals if we wanted to, but we test them on human beings every time we execute people.”
What’s the answer? Lethal injections or another form of death?
Seventy percent of Americans say they don’t consider the death penalty itself to be “cruel and unusual punishment,” according to a recent CNN/ORC poll.
“There are humane and constitutional ways to administer lethal injections,” says McCracken. “The procedure must not include the use of a paralytic drug or concentrated potassium chloride, and the drug or drugs used must be FDA-approved and appropriate for the intended use.”
But when it comes to the most humane way to implement the death penalty, Denno notes that it isn’t lethal injection — regardless of the drugs utilized — that would render the least painful death but, rather, firing squad.
“There have been three modern firing executions,” she comments, all of which “have basically gone off without a hitch. A lot of people think it is barbaric and violent — it just seems like a very violent way to kill someone — which is ironic, because if you’ve ever seen an image of people lethally injected, it’s absolutely horrible.”
Firing squads are “a practice associated with third-world countries,” notes Denno, “but from a medical standpoint, it’s been shown to be the most humane.”
In fact, Denno explains, in a firing squad execution in Utah in 1988, the inmate was hooked up to a heart monitor before his execution to measure his heart death. The results showed that his death was “very quick, within a minute.”
This execution is also the only time in which a method of execution could be considered to have been tested on a human being.