On June 29, 2015, the United States Supreme Court published its long-awaited opinion on the constitutionality of midazolam, the controversial lethal injection drug used in capital executions. The Court’s opinion, which ultimately determined that states like Oklahoma could continue to lawfully administer the chemical as part of its capital punishment cocktail, hinged on the would-be inability of respondents to meet an established evidentiary threshold rather than a firm determination of the legality of the drug’s use. In the end, the petitioners—who sought a preliminary injunction on the use of the drug—lost the case on this procedural hurdle. Nonetheless, the ruling has left the door open for similar challenges in the event of subsequent botched or prolonged executions.
Quick review: Facts and procedure
Under current laws, executions are administered using a drug cocktail that includes midazolam, which works to sedate the prisoner prior to the administration of the remaining fatal injections. According to allegations, midazolam causes prisoners to actually feel part of the execution process; these allegations have prompted a constitutional debate over whether the use of midazolam violates the Eighth Amendment’s prohibition against cruel and unusual punishment.
After several highly publicized botched executions, advocates sought an immediate preliminary injunction in a district court in Oklahoma. In that court, the trial judge concluded that the petitioners had not presented enough evidence to show that a viable alternative drug could be used to ensure a substantially reduced risk of pain, an elemental component of a method-of-execution claim. On appeal, the U.S. Court of Appeals for the Tenth Circuit agreed, and a Supreme Court appeal followed.
Court looks at viable alternatives, finds evidence lacking
In this case, the Court’s job was not to determine the constitutionality of midazolam but to determine if the petitioners would likely win a challenge against midazolam in a permanent injunction lawsuit. To do this, the Court needed evidence showing that the state of Oklahoma has access to a less risky sedative and that obtaining the alternative drug would not place undue burden on the state.
Despite a lengthy analysis of the medical and scientific assertions made at the trial level, the Court was not persuaded that a viable alternative to midazolam exists, nor was it convinced that the drug—generally speaking—is too dangerous or risky for use in executions. First, the majority relied heavily on medical testimony presented at trial, which asserted that a 500-milligram dose of midazolam should prevent an inmate from feeling pain. From there, the Court reminded petitioners that the assertion that midazolam is not the best drug for rendering unconsciousness does not necessarily make it unconstitutional, notwithstanding that fact that only four states use the drug, a detail the Court found “irrelevant.”
Dissent: Death penalty affronts the constitution regardless of the method
In a dissent authored by Justice Sotomayor and joined by Justices Ginsberg, Breyer, and Kagan, Sotomayor chastised the majority not only for its recognition of the death penalty as a constitutional form of punishment under the Eighth Amendment, but also for ignoring the petitioners’ requests for a stay of execution pending the final resolution of the ongoing midazolam debate.
In addressing the constitutionality of the death penalty, Sotomayor provided explicit and lengthy details outlining various problems that have occurred in botched executions involving midazolam, including direct quotes from prisoners who said they could feel everything as it happened. The dissent also rebutted the majority’s conclusion that midazolam is a safe drug to use in executions, distinguishing it as a drug that induces, rather than maintains, unconsciousness. The dissent further discounted the scientific evidence entered at the trial level and concluded by stating, “The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is factually wrong.”
Further, Sotomayor drew no distinction between the tri-cocktail method of modern-day American executions and methods used in the past, opining, “[I]t would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake.”
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