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Supreme Court Okays Use of Midazolam For Lack of a Better Drug

The Supreme Court ruled that midazolam does not violate the prohibition against cruel or unusual punishments.

by Ben Richmond
Jun 29 2015, 4:11pm

Image: Phil Roeder/Flickr

In a 5-4 decision that broke for the conservative side, the Supreme Court ruled that use of the drug midazolam in lethal injection executions does not violate the Eighth Amendment prohibition against cruel or unusual punishments.

Four death row inmates from Oklahoma,where midazolam was incorrectly administered in the botched execution of Clayton Lockett, argued that midazolam creates an unnecessary risk of severe pain. One of the inmates, Charles Warner, was executed in January, before the court voted to grant review and stay the other executions.

In the majority opinion, Justice Samuel Alito explained the two-fold reasoning for ruling against the three remaining inmates. "First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims...Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma's use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain."

Related: The Drug Behind Last Year's Three Botched Executions Is About to Be Used Again

Alito goes on to blame "anti-death-penalty advocates [who] pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences," for the unavailability of alternatives to using midazolam, which had been used in three-drug lethal injection cocktails before.

In a dissenting opinion, Justice Sonia Sotomayor takes issue with the conclusion that Alito draws from Baze v. Rees, a 2008 decision that affirmed the use of the then-standard three-drug cocktail that used the barbiturate sodium thiopental instead of midazolam, a categorically different type of drug. She accused the court of "faulting petitioners for failing to satisfy the wholly novel requirement of proving the availability of an alternative means for their own executions," because they could not provide an available alternative.

Richard Dieter, senior program director at the Death Penalty Information Center, told me that the decision is less an endorsement of midazolam, and more an explanation of why the case against it fell short.

"You really have to demonstrate that this is really going to be painful and there's other things that Oklahoma could be using. They just haven't met that condition," Dieter said. "It's not a blue ribbon for midazolam and I don't think other states will necessarily turn to midazolam. It remains a risky drug to use in executions."

Related: Will the EU Kill America's Death Penalty?

Dieter explained that neither this decision, nor the district court decision which it upholds are scientific examinations of midazolam. The district court hearing, Dieter noted, was "sort of short and could've used more expertise and information," and at the time,Motherboard noticed, drew a lot of expert opinion straight from Drugs.com.

"[The Supreme Court are] saying that 'based on the hearing that was held, we can't find it unconstitutional; we can't stop the executions,'" Dieter said.