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Supreme Court Rules States Can Use Controversial Lethal Injection Drug

The justices Monday ruled 5-4 against three Oklahoma death row inmates who argued that the sedative drug as never meant for that purpose and doesn't work.

by Liz Fields
Jul 10 2015, 7:45pm

Photo by Pat Sullivan/AP

The highest court of the United States has decided that state prisons and corrections facilities can continue to administer midazolam — one of three drugs used in lethal injection cocktails — on death row inmates, ruling that the protocol does not violate the constitution's Eighth Amendment prohibition of "cruel and unusual punishment."

The justices Monday ruled 5-4 against three Oklahoma death row inmates, who argued that the sedative drug — which states routinely inject into prisoners first to knock them out, so they can't feel excruciating pain as the other two drugs are infused into their bloodstream — was never meant for that purpose, and does not work.

Speaking for the majority, Justice Samuel Alito said that it is speculative that the drug could not be used effectively as a sedative in executions.

In a dissent to the court's ruling Monday, Justice Sonia Sotomayor said, "Under the court's new rule, it 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."

In another dissent from Justice Stephen Breyer, he said the ruling meant that the court should now debate the constitutionality of the death penalty itself.

Originally four petitioners called for the review, after lower courts had rejected their appeals. But one prisoner, Charles Warner, has since been executed after the Supreme Court agreed to hear the case in January. Throughout proceedings, the court had refused to issue a stay on any of the inmates impending deaths.

The court had previously rejected a claim that Kentucky's lethal injection procedures violated the constitution's clause on cruel and unusual punishment in of Baze v. Rees (2008).

In upholding the use of the drug Monday, the judges said that the "District Court did not commit clear error when it found that midazolam is likely to render a person unable to feel pain associated with administration of the paralytic agent and potassium chloride."

Related: Documents Reveal 'Bloody Mess' at Botched Oklahoma Execution of Clayton Lockett

The grisly execution of Clayton Lockett by lethal injection on April 29, 2014 was enough to halt all executions in Oklahoma, pending a review of its three-drug cocktail. Months later, documents on the death described by the prison warden as a "bloody mess," revealed it took Lockett 43 minutes to die after he was injected with the experimental drug combination of midazolam, vecuronium bromide, and potassium chloride.

Lockett was declared unconscious 10 minutes after the drugs were first administered, but reportedly groaned, moaned, lifted his head and shoulders, and said "man" as he lay dying. The execution was carried out behind blinds — away from the sight of witnesses, reporters, and lawyers. After that, executions were temporarily put on hold while authorities investigated. The states resumed lethal injections in January 2015, with the killing of Warner, 47, who was on death row for the rape and murder of his roommates' 11-month-old daughter in 1997.

Although lethal injection is considered one of the most painless and peaceful execution methods, mostly because the paralytics create the impression of an innoxious death, that is not always the case. Doctors do not administer the lethal drugs because of their Hippocratic oaths, and it is often left to less experiences paramedics to do the job.

The inmates in the case argued that the science behind choosing lethal injection drugs is also not always medically precise, and those decisions are often left up to prison officials and authorities with no medical training. Mike Oakley, the former general counsel for the Oklahoma Department of Corrections, talked to colleagues and consulted Wikipedia (which he called Wikileaks) about the effectiveness of midazolam, for instance, before settling on its use in state executions.

"I did have a discussion with our medical director at the time and he said, 'Yeah midazolam probably when administered will, will render sedation,'" Oakley told the Guardian. "Then, you know, I did my own research, I looked online, you know. Went past the key Wiki leaks, Wiki leaks [sic] or whatever it is, and I did find out that, when administered, midazolam would administer, would render a person unconscious. That's what we needed… So we thought it was okay."

The Supreme Court petitioners have based their case on the argument that far from having an analgesic effect, midazolam has actually in some instances agitated the prisoner, rather than sedating them. It also has a ceiling effect, the petitioners claim, meaning that larger doses don't make it more effective or guarantee it will work.

The drug "has no pain-relieving properties and cannot reliably produce a deep, coma-like unconsciousness" or prevent the inmate suffering "intense and needless pain and suffering," prisoner rights advocates have written in briefs supporting the petitioners. "It is undisputed that there is a constitutionally unacceptable risk of pain and suffering from administration of the second and third drugs to a conscious prisoner."

Related: Oklahoma rep proposes new form of execution by nitrogen asphyxiation

The petitioners had cited other instances where midazolam failed to work during executions, including the deaths of Dennis McGuire in Ohio, who gasped for 25 minutes before dying, and Joseph Wood in Arizona, who took nearly two hours to die.

In debating the constitutionality of using the drug, the justices sought to answer whether states, under the Eighth Amendment, which prohibits "cruel and unusual punishments," should reassess its three-drug protocol and whether death-row inmates who challenge use of the drug cocktail should have to prove that there's a better alternative.

But Oklahoma and other states have stood by the use of midazolam, which is relatively easy to buy from local manufacturers, as opposed to other commonly-used drugs in lethal injection cocktails which have are harder to come by since many drug companies in the US and abroad stopped supplying prisons for ethical reasons and over controversy surrounding capital punishment.

The shortage of drugs has prompted states to start formulating their own largely untested drug combinations, which led to the series of botches executions, and force 32 states to reexamine their capital punishment procedures.

While some states sought to reinstate back-up alternate methods of execution like the electric chair or firing squads, others sought to put shield laws in place to prevent the press and public from knowing the details of the executions, including the names of the drug manufacturers and distributors. Oklahoma is one of the states that brought in confidentiality laws to protect the sources of its lethal injection drug in 2014.

Related: Oklahoma Plans Executions, But Doesn't Want You to Know the Details