Supreme Court OKs lethal injection drug

WASHINGTON—Oklahoma executed murderer Clayton Lockett last year using the drug midazolam as a sedative in a three-part execution drug protocol. Under midazolam, he writhed and it took him 43 minutes to die.

The state review said the midazolam was improperly administered. Other independent experts argued Lockett had enough of the drug in his system but it quit working as a sedative after the injection of the following two painful, lethal drugs. If midazolam doesn’t sufficiently sedate the condemned prisoner, he will feel the pain of the lethal drugs.

In April, the U.S. Supreme Court heard arguments over whether the drug constitutes “cruel and unusual punishment” under the Eighth Amendment. Without midazolam, states might have abandoned lethal injection altogether. Drug companies who oppose the death penalty have already cut off the production and sale of other drugs used as execution sedatives, like sodium thiopental and pentobarbital.

But today the court ruled 5-4 that midazolam is an acceptable drug for the execution protocol, saying the burden was on the death row inmate to identify a “known and available alternative method of execution that entails a lesser risk of pain.” The court said a handful of botched executions had “little probative value.”

“[B]ecause 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,” Justice Samuel Alito wrote for the majority, which included Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas. “Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

With the threat of losing lethal injection drugs, Utah had recently reinstated the firing squad as an execution method. Justice Sonia Sotomayor wrote in her dissent that the firing squad might be more humane than the current drugs that could result in drawn-out deaths.

Most of the substance of the ruling and dissents’ 127-pages centered on the science behind midazolam, pitting Oklahoma’s expert witness, Dr. Roswell Evans, against the petitioners’ experts, Drs. Larry Sasich and David Lubarsky. The main question is whether midazolam has a “ceiling effect,” where the drug’s effectiveness as a sedative tops out after a certain dosage.

The majority’s ruling relied on the findings of the district court, which also upheld midazolam, that a 500-milligram dose of the drug “would make it a virtual certainty that any individual will be at a sufficient level of unconsciousness to resist the noxious stimuli which could occur from the application of the second and third drugs.”

The principle dissent by Sotomayor, which Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined, said the majority’s factual conclusions were based on “the scientifically unsupported and implausible testimony of a single expert witness.” Sotomayor wrote that using scientifically questionable execution drugs amounted to “human experimentation.”

The dissenters also questioned the court’s ruling that inmates must provide a better alternative drug when challenging an execution drug. Drug companies can legally make the drugs or not make the drugs, she argued, and the burden should not rest on inmates to name a pain-free execution method.

“If all available means of conducting an execution constitute cruel and unusual punishment, then conducting the execution will constitute cruel and usual punishment,” Sotomayor wrote. “Nothing compels a state to perform an execution. It does not get a constitutional free pass simply because it desires to deliver the ultimate penalty; its ends do not justify any and all means. If a state wishes to carry out an execution, it must do so subject to the constraints that our Constitution imposes on it, including the obligation to ensure that its chosen method is not cruel and unusual. Certainly the condemned has no duty to devise or pick a constitutional instrument of his or her own death.”

Justice Stephen Breyer dropped a bombshell in a separate dissent with Justice Ruth Bader Ginsburg, announcing their belief that the death penalty is unconstitutional, and that the court should hear a case on its constitutionality. He cited the numerous innocent people who have been executed over the years, the arbitrariness with which criminals are executed, and the “unconscionably long delays” in executing those on death row. Breyer said legislatures had failed to overturn the death penalty and therefore the overturn was a “judicial responsibility.”

"I believe that whatever interest in retribution might be served by the death penalty as currently administered, that interest can be served almost as well by a sentence of life in prison without parole,” Breyer wrote.

Scalia wrote a concurring opinion to eviscerate Breyer’s argument, which he called “a white paper devoid of any meaningful legal argument.” He said the justices are insulated from violence that is “ever present in many Americans’ everyday lives” and Breyer’s argument that the death penalty does not deter crime reflects “a let-them-eat-cake obliviousness to the needs of others.”

Scalia was particularly incensed with Breyer’s assertion that it is the judiciary’s role to end the death penalty.

“Capital punishment presents moral questions that philosophers, theologians, and statesmen have grappled with for millennia,” he wrote. “The framers of our Constitution disagreed bitterly on the matter. For that reason, they handled it the same way they handled many other controversial issues: They left it to the people to decide. By arrogating to himself the power to overturn that decision, Justice Breyer does not just reject the death penalty, he rejects the Enlightenment.”

One Catholic group had filed an amicus brief in the case, based on the Catholic church’s longstanding opposition to the death penalty, arguing midazolam executions undermined “the innate dignity of human life.”