Supreme Court takes close, contested look at lethal injection drug

WASHINGTON — Exactly one year after a botched execution in Oklahoma, the Supreme Court took a close look at the effectiveness of a specific drug used in the state’s lethal injections to determine whether it constitutes cruel and unusual punishment.

A tree branch frames the U.S. Supreme Court in Washington in this 2009 photo.. (CNS photo | Molly Riley, Reuters)

The April 29 oral arguments were at times bogged down by medical details and, at other times, were argumentative about the drug in question and the death penalty in general.

The case, Glossip v. Gross, was presented by lawyers for three Oklahoma death-row inmates claiming the drug midazolam, the first drug administered in the state’s three-part lethal injection process, does not effectively put inmates into a coma-like state that prevents them from feeling pain.

It was the first time the justices re-examined lethal injections since 2008, when they ruled in Baze v. Rees that a three-drug protocol used in Kentucky executions did not violate the Constitution’s ban on cruel and unusual punishment. In that protocol, the first drug causes unconsciousness, the second brings about paralysis and the third stops the heart.

The difference now is that in recent years a shortage of drugs — due in part to a European-led boycott — has caused states to try a variety of drug combinations, not the specific ones the court considered and upheld in 2008. When Oklahoma prison authorities could no longer obtain a drug previously used, they began using midazolam, which was a factor in three problematic executions last year.

One example cited frequently by opponents of the drug protocol is the April 2014 execution of Clayton Lockett, who writhed in pain for 40 minutes before dying of apparent heart failure.

In the arguments, the justices initially focused on detailed descriptions of the drug in question and how lower courts had examined its effects.

Justice Elena Kagan expressed doubts about the use of midazolam. “There is huge uncertainty about what happens” when it is administered, she said. “The evidence is that nobody can tell — that nobody knows for sure whether midazolam will work.”

If the drug doesn’t bring on a coma-like state, she said, then, what happens to prisoners when they receive the third drug, potassium chloride, which stops the heart? “People say that potassium chloride is like being burned alive — they talk about being burned at the stake, which everyone agrees is cruel and unusual.”

Justices Samuel Alito and Antonin Scalia switched the discussion from the effects of midazolam to the fact that it has to be used in the first place, noting that death penalty opponents have made it harder for prisons to obtain the effective drugs needed for lethal injections.

Alito accused opponents of capital punishment with mounting “a guerrilla war on the death penalty” with their efforts to “make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain.”

Scalia continued with the point, saying “pressure on the companies” that produce lethal drugs has caused the drugs’ shortage, which is why the court is in the position of looking at the effects of a specific drug.

He noted that midazalom may not be “100 percent” able to dull the pain experienced by prisoners, but he said the bigger issue is that “abolitionists have rendered it impossible to get the 100 percent sure drugs” which he said needs to be part of the discussion.

Several groups filed amicus briefs in support of the Oklahoma inmates, including human rights organizations, former state attorneys general, a group of pharmacology professors and religious and ethics organizations.

The state of Oklahoma had briefs of support from 14 other states and the legal advocacy group, Criminal Justice Legal Foundation.

An amicus brief filed by the National Catholic Reporter, an independent, lay-owned biweekly newspaper, said the use of midazolam in lethal injection was “inconsistent with Catholic teachings and this court’s precedent” and said its use, despite evidence that it is “incapable of maintaining a deep coma-like” state, “amounts to torture.”

The Catholic newspaper also said the “brutality associated with executions using midazolam fundamentally undermines the innate dignity of human life,” pointing out that “no matter what crimes the condemned have committed, their dignity as human beings should be respected.”

A statement issued in April by Archbishop Paul S. Coakley of Oklahoma City, noted that the oral arguments were taking place a year after a botched execution in Oklahoma, which prompted him to call for “a re-examination of the use of the death penalty in our state and a moratorium that might lead ultimately to its abolition.”

“I want to reaffirm my opposition to the use of the death penalty and call upon Catholics, and all people of Oklahoma, to work together toward the abolition of the death penalty in our state. Let us pray together that the court’s review will lead to a recognition that this form of institutionalized violence against persons is not in the best interest of the state, and is ultimately harmful to society because it further erodes respect for the dignity of the human person.”

A ruling is expected by the end of the court’s term in late June.

Related Posts:

• Archbishop says botched execution highlights brutality of death penalty
• Death penalty not the answer
• Four national Catholic publications call for ending the death penalty
• Holy See representative urges all states to abolish death penalty
• Book brings new information to arguments against capital punishment

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