Last April, Oklahoma death-row inmate Clayton Lockett was administered a sedative called midazolam that failed to subdue the painful effects of the drug cocktail used in his lethal injection, subjecting him to an agonizing 43 minutes on a prison gurney as the drugs slowly ran their course through his bloodstream.
Similar cases have occurred prior to Lockett’s in Ohio and Arizona in which midazolam did not render prisoners unconscious or at least sufficiently numb, leaving them writhing and breathless for executions that lasted nearly two hours. And now the Supreme Court, finally responding to the apparent hazard after a second Oklahoma inmate’s injection of the sedative was botched, is taking up the case of the state’s remaining death row occupants in Glossip v. Gross, both addressing the constitutionality of midazolam and facilitating a contentious debate regarding the Eighth Amendment and the subsequent ideological split in what is considered “cruel and unusual punishment.”
Although the case is not calling into question the overall constitutionality of capital punishment, conservative justices are blaming the issues with midazolam on the “abolitionists” who have supposedly pressured foreign and domestic sedative suppliers into withdrawing their provisions of the acceptable drugs that are customarily used with lethal injections.
CNN reports that “Justice Antonin Scalia continued the line of inquiry saying other drugs that states have used in the past have been ‘rendered unavailable by the abolitionist movement’ that puts pressure on companies that manufacture them” (“Supreme Court takes up death penalty drug case,” 05.01.15).
In 2008, the Court underwent an identical trial in Baze v. Rees, which stated that the sedative sodium thiopental was indeed a constitutional method of anesthetizing inmates, and without it, condemned prisoners could be subjected to “A substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride” (The Atlantic, “Midazolam and the Supreme Court,” 01.23.15).
But in the years since, the drug’s manufacturers gradually responded to anti-death penalty sentiments by pulling sodium thiopental from the market, and by 2011, the last American supplier had stopped providing the drug, leaving death penalty states with no other option than to experiment with unfamiliar drug cocktails.
Midazolam, then, has come to the fore as a seemingly reasonable substitute for sodium thiopental. And yet, in the drug’s earliest applications, it has proven to be not even remotely successful at accomplishing a state of anesthesia necessary to counter the pain of the executions; Ohio inmate Dennis McGuire, who was injected last January with midazolam and hydromorphone, gasped as he was dying that he could “feel his whole body burning,” and Arizona inmate Joseph Wood, whose execution followed a few months after McGuire’s despite this, was visibly suffocating for an entire hour and 57 minutes before the injection finally killed him.
In fact, the only instances in which midazolam hasn’t produced unfavorable effects were the few Florida executions that implemented the drug immediately after its initial adoption. Regardless of the cause of midazolam’s inefficacy, whether or not it be rooted in differences in state procedures and administrations of injections, Justice Sotomayor noted that the absence of sodium thiopental “May have revealed pain and suffering that would otherwise be unobservable,” and, with regard to Florida’s practices, a report by The Atlantic adds that “This possibility raises serious questions about all executions performed with midazolam, including those carried out without incident in Florida.”
As an opponent of the death penalty, I’m finding difficulty in separating the substance of Glossip v. Gross from the broader subject of capital punishment’s constitutionality. The most glaring contradiction within this case is the debate over whether or not midazolam subjects individuals to, as written in the eighth “cruel and unusual punishment”– an exceedingly subjective term that is problematic in itself– when the practice of the death penalty is already widely considered by organizations like Amnesty International, numerous public figures and even other states to be an unjust act of state-sanctioned murder.
Sure, the majority of U.S. states uphold the value of capital punishment and an estimated 70 percent of Americans do not identify it as “cruel and unusual punishment”; however, the fact remains that activists have had such a profound sway over the market for sedatives that these states’ acquisition of similar drugs has reduced executions to little more than perverse experiments reminiscent of history’s most detestable outdated medical practices, with little known beyond limited medical specuatlion of the effect these chemicals would have on the human body.
How can the constitutionality of the death penalty persist if the only factor that justifies its legitimacy as an acceptable form of punishment, the presence of safe sedatives, is being quickly eradicated by its suppliers? And if the effectiveness of midazolam does not hold up in court, are prisoners to be treated as guinea pigs until stable replacements are found? It seems almost surprising that such a legal quandary continues and that these public authorities seem so set on enforcing death as a necessary consequence in the justice system.
What’s additionally surprising is that, in a sense, this would perhaps not even be permitted in our society if it weren’t for our ongoing complicated relationship between federalism and states’ rights.
At its core, the premise of this lawsuit and numerous other suits is grounded on the concept that a state has the authority to decide the matter of capital punishment, so long as it falls within the vague application of Gregg V. Georgia after capital punishment was reinstated in 1976. Some states chose to halt executions since the 1972 moratorium, and those that remain today seem to be focused on their state-level interpretation of justice being superior to a national rhetoric or opinion on the matter of capital punishment, something few of peers deal with at a legal level.
In few other nations in the world today would such a state-level debate exist, as nationally it seems beyond federal crimes like treason and terrorism that many federal authorities seem interested in continuing the complexity of the death penalty. In a way, states are not afraid of losing the right to capital punishment, but rather the right to any state authorities they maintain in the status quo. Sadly, this debate seems to, at times, exist more with political power than the lives that lay in the balance.
Should the Court decide to strike down the use of midazolam as unconstitutional, Glossip v. Gross will arise as the only example of a case thus far in American history to denounce any method of capital punishment on the federal level. While this could be a resounding victory for anti-death penalty activists, such an outcome also carries grave implications for the future of the practice.
Forced to abandon lethal injection as a viable execution process, states could potentially return to more gruesome methods like firing squads and the electric chair granted, these are legal in many states, but their inhumane and painful effects, which would not serve as an improvement upon the suffocation experienced during botched lethal injections, are considered the most objectionable and antiquated of the forms of capital punishment.
But in this vein, perhaps the lack of any remaining painless execution methods won’t encourage states to pick up old practices, but to eventually abandon the death penalty altogether.