Are new execution drugs cruel and unusual?

WASHINGTON—A year ago, Oklahoma botched the execution of Clayton Lockett, condemned to death for murdering a teenager in 1999. Lockett writhed during his execution, and it took him 43 minutes to die.

Today the U.S. Supreme Court heard a case from Oklahoma death row prisoners who argue one of the drugs used in Lockett’s execution constituted “cruel and unusual punishment,” prohibited by the Eighth Amendment. Before the court agreed to take the case and stay the petitioners’ executions, Oklahoma went forward with the execution of one, Charles Warner, using the drug at issue. Midazolam is a sedative that is supposed to block the pain of the lethal drugs that follow it in the three-part protocol. Warner’s last words were, “My body is on fire.”

Of the 15 other executions that have used midazolam, several others have gone badly. In July 2014, Arizona used midazolam with another drug for the execution of Joseph Wood, who died a full two hours after the drugs entered his system. Witnesses described him gasping the whole time, but state officials said he was “snoring.”

States are improvising execution drug combinations after drug makers, many of them European companies that object to the death penalty, ended production of some of the key drugs. Oklahoma formerly used sodium thiopental as the first sedative drug in its three-part drug execution protocol, but has been unable to acquire it from companies since 2010.

“Let’s be honest about what’s going on here,” said Justice Samuel Alito in the arguments. “There are jurisdictions that allow assisted suicide,” he said, so humane, lethal drugs exist. He said the states’ inability to obtain execution drugs amounts to a “guerrilla war against the death penalty … making it impossible for the states to carry out capital punishments without any pain.”

Justice Antonin Scalia joined Alito’s point, saying drugs had been “rendered unavailable by the abolitionist movement.” Justice Anthony Kennedy also asked about Alito and Scalia’s point, “that there is a method but it’s not available because of opposition to the death penalty.”

Robin Konrad, the attorney arguing for the death row inmates, tried to keep their focus on the drug at hand.

“The purpose of the court is to decide whether a certain method of execution is intolerable,” she said.

Thirty-two states and the federal government allow the death penalty. In anticipation that they might lose at the Supreme Court, states have set up alternative execution methods. Oklahoma plans to execute prisoners using nitrogen gas if midazolam is outlawed. Utah recently reinstated the firing squad as an execution method. Virginia gives inmates the choice between lethal injection and the electric chair. Tennessee recently made the electric chair the mandatory method of execution if lethal injection drugs are unavailable.

The court was divided between the conservatives and liberals on the issue—Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor had all dissented from the court’s earlier decision not to stay Warner’s execution.

But much of the debate at the court Wednesday was over the science behind the drug. All the justices seemed frustrated with a lack of confirmable data on how the drug worked, and whether it really rendered subjects unconscious during the administration of lethal drugs or if prisoners woke up before they died. Doctors can’t conduct studies on the effects of lethal drugs on humans for obvious ethical reasons.

“As I see it, it’s just a fact question,” Scalia said.

Oklahoma Solicitor General Patrick Wyrick read from one scientific article, which Sotomayor disputed.

“Nothing you say or read to me am I going to believe, frankly,” Sotomayor told him, questioning his sources. Breyer also questioned Wyrick about several of his sources, going through them point by point.

“Do you think if we conclude that there is just a lot of uncertainty about this drug … do you think it’s a violation of the Eighth Amendment?” Kagan asked.

Wyrick said that would shift the burden of proof to the state. Under Supreme Court precedent, the burden is on the plaintiffs to show the drug creates a “substantial risk of harm.” Both the district court and the 10th U.S. Circuit Court of Appeals ruled in favor of Oklahoma before the Supreme Court took the case.

No religious groups weighed in on this case in amicus briefs, other than the National Catholic Reporter, which filed on the side of the prisoners based on the Catholic Church’s longstanding opposition to the death penalty.

“Catholics believe that human beings are created in the image of God,” the brief read. “At core, the brutality associated with executions using midazolam fundamentally undermines the innate dignity of human life revered by so many Americans with religious convictions and embodied in our country’s legal traditions.”

The court will issue a ruling by the end of June.