The SCOTUS held today by a vote of 5-4 in Glossip v. Gross, that three Oklahoma inmates awaiting execution failed to establish a likelihood of success on the merits of their claim that the use of midazolam as the first drug administered in a three-drug execution cocktail violates the Eighth Amendment prohibition against cruel and unusual punishmen because it “fails to render a person insensate to pain.”
Midazolam is a Schedule IV controlled substance, a benzodiazepine in the same class as diazepam, lorazepam, alprazolam and clonazepam. It has been approved for use in treating epileptic seizures, anxiety disorders and agitation. It is normally administered to patients to relax them before undergoing surgery or a medical procedure. It has never been approved by the manufacturer and the FDA for use in rendering people unconscious before administering a paralytic agent to inhibit all muscular-skeletal movements and potassium chloride to induce cardiac arrest.
Oklahoma and other states started using midazolam after the manufacturer of sodium thiopental, the barbiturate used to induce a state of unconsciousness before administering the other two drugs, objected to it being used to execute people and refused to sell it to any vendor who would sell or transfer it to states to use in executions.
The inmates based their argument on several botched executions where inmates appeared to be experiencing considerable distress before dying. They contended that midazolam failed to render those inmates unconscious while inducing a feeling described by one victim as burning up inside.
After a three-day evidentiary hearing, a United States District Court judge held that the inmates failed to identify an available alternative method that presented a substantially less severe risk of pain. The judge also held that the inmates failed to establish a likelihood that the use of midazolam created a risk of severe pain. The Tenth Circuit affirmed the decision.
Writing for the majority, Justice Alito affirmed the district court decision holding that the inmates failed to establish a likelihood of success on their Eighth Amendment claim.
Justice Sotomayor dissented, joined by Justice Breyer and Justice Kagan. Condemning the execution with midazolam as the equivalent of burning someone to death on a stake, she said,
The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong. The Court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible.
“By protecting even those convicted of heinous crimes,the Eighth Amendment reaffirms the duty of the government to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the condemned inmate to identify an available means for his orher own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price.
Justice Breyer also wrote his own dissenting opinion, joined by Justice Ginsburg. He wrote,
I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution….Today’s administration of the death penalty involves three fundamental constitutional defects: (1) serious unreliability, (2) arbitrariness in application, and (3) unconscionably long delays that undermine the death penalty’s penological purpose. Perhaps as a result, (4) most places within the United States have abandoned its use.
Breyer and Ginsburg with Sotomayor and Kagan close behind appear ready to stop tinkering with the machinery of death and decide that the death penalty violates the Eighth amendment, regardless of the underlying facts.
Read the slip opinion here: PDF