Supreme Court Upholds Controversial Experimental Cocktail for Death-Row Inmates

In a 5-4 decision, justices rule a lethal-injection drug constitutional, disappointing anti-death-penalty advocates.

Execution room in the San Quentin State Prison in California
Execution room in the San Quentin State Prison in California (photo: Wikipedia)

WASHINGTON — Lethal injection narrowly missed becoming de facto unconstitutional after the U.S. Supreme Court upheld states’ use of a drug involved in several botched executions, saying it did not meet the threshold of “cruel and unusual punishment.”

In a 5-4 decision released Monday, the high court ruled against a group of death-row inmates who had challenged the state of Oklahoma’s use of the experimental sedative midazolam as inadequate for guaranteeing a painless execution. The inmates alleged this was a violation of the Eighth Amendment to the U.S. Constitution.

The majority opinion, written by Justice Samuel Alito, and joined by Justices Anthony Kennedy, Antonin Scalia and Clarence Thomas and Chief Justice John Roberts, said, “It is settled that capital punishment is constitutional,” and therefore it “necessarily follows that there must be a [constitutional] means of carrying it out.”

“Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether,” it added.

Midazolam is the first drug in the three-drug lethal injection protocol for Oklahoma (and four other states). The drug is an experimental replacement for sodium thiopental and pentobarbital, powerful barbiturates the state was no longer able to acquire after anti-death-penalty activists succeeded in pressuring each drug’s manufacturer to stop producing them. Midazolam is meant to suppress any pain from the administration of the following two drugs: pancuronium bromide, which induces paralysis, and potassium chloride, which stops the heart.

Activists have been pressuring drug manufacturers and pharmacists to not participate in the lethal-injection business, and some states have responded by passing secrecy laws or resorting to new experimental drugs in order to keep the executions going.

The inmates’ attorneys in Glossip v. Gross argued that midazolam’s effectiveness at eliminating pain was recently called into question by several unusually prolonged executions in Ohio, Arizona and Oklahoma, in which inmates appeared to suffer excruciating pain during their deaths. The case itself was filed in 2014, following Oklahoma’s execution of Clayton Lockett, a convicted murderer and rapist.

Lockett writhed in agony before officials called a halt to his execution 20 minutes later. He subsequently died from a heart attack, but the episode led Archbishop Paul Coakley of Oklahoma City to call for a moratorium on the death penalty, saying Lockett’s manner of death highlighted “the brutality of the death penalty.”

Oklahoma state officials argued that swapping out sodium thiopental for the experimental midazolam — untried until fall 2013 — was consistent with the Supreme Court’s 2008 precedent on lethal injection, which ruled the first drug used in any three-drug execution protocol must prevent inmates from experiencing intense pain.

The majority ruling said that “because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain.”

The court explained that the state of Oklahoma had made a “good-faith effort” to find stocks of sodium thiopental and ruled that the inmates arguing against the use of midazolam had “failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution.”

But Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, argued that the changes over the past 40 years show it is time to reopen the debate on the death penalty’s constitutionality, saying it “now likely constitutes a legally prohibited ‘cruel and unusual punishmen[t].’”

“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 said.


Opposing Reactions

A statement from Gov. Mary Fallin of Oklahoma applauded the Supreme Court’s decision to allow midazolam’s use in executions and announced that execution dates were to be set for Richard Glossip, John Marion Grant and Benjamin Robert Cole, the death-row inmates who brought the suit against the state.

“The Constitution is clearly not intended to prohibit the death penalty by lethal injection or the use of the sedative midazolam,” she said. “I appreciate the court’s ruling, which upholds the letter and the spirit of the law as it is written.”

However, Archbishop Coakley responded by condemning the death penalty in any form, saying its use “diminishes us all.”

“Even as we seek justice for these grave wrongs and render compassion for those who have endured great loss, our faith impels us to call for the building up of a culture of life where every human life is valued,” he said in a statement provided to the Register.

At the U.S. Conference of Catholic Bishops, Anthony Granado, policy adviser for the Office of Domestic Social Development, argued that capital punishment must end and that the court’s decision did not contribute to “the building of a culture of life in our nation.”

“The decision of the Supreme Court today upholding certain lethal injection practices in Oklahoma is very disappointing,” he said. “Pope Francis addressed debate about methods of execution in a letter he wrote in March, in which he stated, ‘There is no humane form of killing another person.’”

“A continued cycle of violence diminishes all of us. When there are other ways to safeguard society, resorting to the death penalty displays a disregard for human life and dignity,” Granado said.

The Catholic Mobilizing Network, which promotes restorative justice (rehabilitation of criminals through reconciliation with the victims and the community at large), also argues that the death penalty contravenes the Church’s witness to the sanctity of human life and dignity.

“Our faith calls us to build a culture of life. We cannot teach killing is wrong by killing,” it said in a statement.


Catholic Tradition

Edward Peters, professor of canon law at the Sacred Heart Major Seminary of the Archdiocese of Detroit, said that Catholic Tradition “recognizes the right of the state to impose capital punishment,” as well as to substitute lesser penalties for the death penalty.

Peters said that Pope Francis “may be accurately understood to be calling for the complete abolition of the death penalty (and, it seems, for the abolition of life imprisonment as well). But, even assuming those are in fact Francis’ views, he has not presented them in a way that suffices to change the Catholic Tradition accepting as morally licit the limited application of the death penalty.” 

“Francis’ views must be taken into account by those who want to know Church teaching in this area, but, so far at least, neither he nor John Paul II has fundamentally changed Church teaching on this matter,” Peters said.

The canonist added that, while contemporary discussion of the death penalty has focused on the need to defend the innocent from an aggressor, the death penalty also has a function of “punishment for past acts” affirmed in the Catechism of the Catholic Church.

“The death penalty can be a way of trying, within the inevitable limits of human justice, to restore the social disorder introduced by certain especially grave crimes,” he said.

But Archbishop Coakley has argued previously that the continued use of the death penalty in the modern world “threatens to erode completely our sense of the innate dignity of the human person and of the sanctity of human life from conception to natural death.”

“When available, we should choose non-lethal ways to ensure justice and to protect society,” he said in his latest statement. “I pray for the day that Oklahoma and other states will abolish capital punishment.”

Peter Jesserer Smith is the Register’s Washington correspondent.

CNA contributed to this report.

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