Back Where We Started
The Supreme Court Monday decided that Oklahoma’s use of the drug midazolam in executions does not violate the Eighth Amendment’s prohibition on cruel and unusual punishment.While the decision will probably lead to greater use of midazolam in executions, nothing about the ruling suggests that the 5-4 majority took seriously the scientific facts about this particular drug. As a result, it is likely that sooner or later we will be right back where we started when challenges to lethal injection began to proliferate, debating whether risky, untested execution procedures present an unacceptable risk of excruciating pain.
In practical terms, the Court’s decision in Glossip v. Grossgives states the go-ahead to use the drug midazolam in executions. Oklahoma and Florida can resume executing prisoners with their three-drug procedures that rely on midazolam as the first drug. It would not be surprising if other states that have not previously used the drug – or have used and abandoned it – take advantage of midazolam’s new seal of approval from the highest court of the land by including the drug in their execution procedures.
Executions are painful procedures, and nobody disputes that the Eighth Amendment requires that prisoners being executed be rendered sufficiently unconscious prior to the administration of the lethal drugs. The problem with midazolam is that it is not an anesthetic, like the other drugs states have used in executions. Instead, it is a benzodiazepine drug (in the same class as Xanax and Valium). In a clinical setting, it typically is used to treat anxiety before surgery or as a sedative for a minor procedure. It is neither used, nor approved for use, as a stand-alone anesthetic for painful procedures.
Despite the fact that is not indicated for anesthesia, midazolam has been used in fifteen executions in four states. Three of those fifteen executions were unquestionably bungled. The prisoners continued to breathe and attempted to speak and move, showing signs of distress for extended periods of time after prison officials administered midazolam.
Both Oklahoma and Florida paralyze inmates after injecting them with midazolam. When properly administered, the paralytic drug prevents all movement. Inmates are then injected with concentrated potassium chloride, which causes searing pain by activating the nerve endings and stops the heart upon contact. In short, once prisoners have been paralyzed, it is virtually impossible to detect if they experience the pain of the potassium chloride. (This is why most states ban the use of paralytic agents in animal euthanasia.)
In the instances where prisoners were not paralyzed following administration of midazolam, however, we have an opportunity to see whether the sedative is performing the role in executions that it is meant to perform. The track record is not good. In all three of the botched midazolam executions, there were serious problems that led to indisputably torturous executions. As states resume executions using midazolam followed by a paralytic, we may never know if and when additional prisoners will experience pain and suffering.
If this sounds familiar, that’s because it is. From Baze v. Rees, the 2008 case decision in which the Court upheld the constitutionality of Kentucky’s lethal injection procedure, to Glossip, much has remained the same in states like Oklahoma that continue to use a three-drug protocol. Prisoners face the same risks of conscious paralysis and grievous pain and suffering, and the courts have applied the same legal principles to their lethal injection challenges. What has changed is the first drug in the three-drug procedure. Whereas states previously used barbiturate drugs to anesthetize prisoners, they are now using midazolam, which is not a barbiturate or an anesthetic and cannot keep the prisoner under anesthesia when the second and third drugs are injected.
The majority in Glossip worked hard to rewrite the facts about midazolam to restart executions Oklahoma and other states. As Justice Sonia Sotomayor explained in her dissenting opinion, the Court reached its conclusions “by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail.”
Writing for the five justices in the majority vote, Justice Samuel Alito said that the condemned prisoners who challenged the use of midazolam failed to effectively demonstrate that midazolam poses a “substantial risk of severe pain.” His opinion, in essence, is a restatement of Baze. It clarifies lingering questions that have plagued condemned prisoners and courts alike since Baze, but it does not alter the nature or the viability of lethal injection litigation.
When the Court decided Baze, a plurality of the Justices held that a prisoner challenging the constitutionality of an execution procedure must establish that it “is ‘sure or very likely to cause serious illness and needless suffering.’” The prisoner must demonstrate a “substantial,” “objectively intolerable risk of harm.” In Glossip, the Court concluded that the petitioners did not establish that midazolam poses this type of risk.
To find that the use of midazolam in a three-drug protocol satisfies the Constitution, the majority had to disregard significant scientific evidencethat midazolam is pharmacologically incapable of maintaining the level of anesthesia necessary to prevent condemned prisoners from experiencing the pain and suffering caused by the paralytic drug and potassium chloride. The majority abdicated its responsibility to critically review the scientifically baseless testimony of the state’s expert, which was presented at a truncated hearing and strongly refuted by both the petitioners’ experts and medical and scientific publications, and instead rubber-stamped the flawed reasoning of the trial and appellate courts. In so doing, the Court demonstrated a willingness to ignore science in order to reach the desired conclusion that Oklahoma’s lethal injection protocol is constitutional.
If the Court wanted to give the green light to states to use midazolam, the Glossipruling surely accomplishes the task. But if the hope was that the ruling would ensure that executions would be humane and constitutional, or that legitimate constitutional challenges to them would cease, the prognosis is not nearly so clear.
This piece was co-authored by Jen Moreno.