Supreme Court Rules Executions Performed With Controversial Drugs Not Unconstitutional
Another day, another 5-4 split on the U.S. Supreme Court along ideological lines. I’m referring to the recent high-court decision in which held that executions carried out by a controversial three-drug protocol did not constitute “cruel and unusual punishment” under the Constitution’s Eighth Amendment.
Lead plaintiff Charles Warner, convicted in 2003 of raping and murdering an 11-month-old in 1997, was put to death in Oklahoma while awaiting the ruling in this case. The issue at bar (officially the case was called Glossip v. Gross) was the use of the drug Midazolam, which has been blamed in three problematic executions in different states in 2014.
While Warner’s execution was deemed a success by corrections officials, the same cannot be said for the taking of the life of Oklahoma death row Clayton Lockett, also a convicted murderer. He is said to have spoken, kicked, grimaced and survived for nearly 45 minutes after his execution last year got underway. An investigation later concluded that the botched execution was the result of an improperly inserted needle.
But what Lockett’s case shares with two other bungled state executions is the drug Midazolam. It was used in the death of an Arizona inmate who snorted, gasped and took almost two hours to succumb. It also was part of the lethal-injection process of an Ohio inmate who choked and gasped for 30 minutes before dying, according to mainstream media accounts.
In Oklahoma, when state officials could no longer obtain the drug they customarily relied on, they turned to the drug Midazolam. Consequently, the high court’s decision in Glossip v. Gross did not center on the death penalty itself, but instead was a narrow review of whether a lower-court judge had made the correct call in authorizing the use of Midazolam, intended to be used as a sedative. The plaintiffs in the case (including Warner) argued that Midazolam would not render them unable to feel the pain of the other two death-causing drugs.
The court’s majority opinion, written by Justice Samuel Alito, stated that the petitioners “failed to establish a likelihood of success on the merits of their claim that the use of Midazolam violates the Eighth Amendment.” Justice Sonia Sotomayor’s dissent, however, states that “under the Court’s new rule, 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: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designates.”
During oral argument, concerns centered around whether Midazolam is effective at producing a coma-like state to keep an inmate from being abruptly awoken by the other two drugs in the protocol: a paralytic drug and a heart-stopping potassium chloride. Midazolam became the drug of choice after pentobarbital and other drugs are no longer available to the US from European manufacturers because of their anti-death penalty stance.
Another disturbing aspect of the case: There’s also been secrecy about where and how states are getting the new drugs such as Midazolam. Media outlets have reported that prison officials from different states have made secret handoffs of lethal-injection drugs. State workers have carried stacks of cash into unregulated compounding pharmacies to purchase chemicals for executions. Some states, like Oklahoma, have relied on unproven drug cocktails, all while saying they must conceal the source of the drugs in order to protect the suppliers from legal action and harassment.
In summary, we now have narrow Supreme Court approval giving states the OK to engage in the questionable practice of purchasing controversial and less-than-effective drugs (in secret) in order to carry out executions.
About the Attorney
Elizabeth B. Carpenter is a criminal defense attorney who fights for the rights of individuals throughout south Louisiana.