Supreme Court: Execution drug does not violate Eighth Amendment

The table where executions are carried out by lethal injection at San Quentin State Prison in California (CNS/Courtesy of California Department of Corrections)
The table where executions are carried out by lethal injection at San Quentin State Prison in California (CNS/Courtesy of California Department of Corrections)

by Soli Salgado

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In a 5-4 ruling in the case of Glossip v. Gross, the Supreme Court ruled Monday that the use of midazolam for executions does not violate the Eighth Amendment's ban on "cruel and unusual punishment."

Three drugs are typically used for the lethal injection procedure, known as "protocol": The first drug knocks the inmate unconscious, the second paralyzes and stops the breathing, and the final drug stops the heart.

But the first drug, sodium thiopental, is no longer sold for executions, and its substitute soon became difficult to obtain. Such obstacles led Oklahoma to try a third option, midazolam. This drug, however, is a sedative for treating anxiety, not an anesthetic.

The difference between sedatives and anesthetics was at the core of the case brought to the Supreme Court.

In writing for the majority, Justice Samuel Alito said the plaintiffs -- three condemned inmates -- failed to provide an alternative method of execution that reduces the risk of pain and failed to make the case that a massive dose of the challenged drug causes a substantial risk of severe pain.

Joining him were Chief Justice John Roberts and Justices Antonin Scalia, Anthony Kennedy and Clarence Thomas -- all five of whom are Catholic.

In her dissent, Justice Sonia Sotomayor wrote that "the Court's available-alternative requirement leads to patently absurd consequences."

"Petitioners contend that Oklahoma's current protocol is a barbarous method of punishment -- the chemical equivalent of being burned alive," she wrote. "But 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."

Seven years have passed since the legal principles regarding lethal-drug protocols have been revisited, when the 2008 decision on Baze v. Rees established two legal stipulations regarding capital punishment. First, an execution with "a 'substantial' or 'objectively intolerable' risk of serious harm" is a violation of the Eighth Amendment's ban on cruel and unusual punishment. Secondly, a state that refuses to adopt available alternative methods that reduce the risk of pain is in violation of the amendment, as well.

The debate continued, however, after a number of highly publicized botched executions. When Ohio ran out of its main drug because of European objections to the death penalty, Dennis McGuire spent 25 minutes gasping and choking before dying in January 2014. Oklahoma's Clayton Lockett suffered a heart attack in April 2014 40 minutes after state authorities initiated the lethal injection. And in Arizona, Joseph Wood took two hours to die in July 2014, which prompted the governor to review the state's go-to method of execution.

The preferred first drug in the lethal "cocktail" -- sodium thiopental -- withstood the constitutional test. After manufacturers stopped selling it for executions, forcing states to look toward alternatives not protected by the Constitution, four inmates on Oklahoma's death row issued an appeal that went to the Supreme Court. The court, however, did not grant delays for their death sentences until after the Jan. 15 execution of Charles Warner, one of the four inmates.

Alito noted in his opinion that the unavailability of the drugs were due to "anti-death-penalty advocates" who "pressured pharmaceutical companies to refuse to supply the drugs used to carry out death sentences."

Justices Stephen Breyer and Ruth Bader Ginsburg, who also delivered a dissent from the bench, suggested the death penalty itself may be a violation of the Constitution.

Editor's note: Watch throughout the day for more reporting on the Supreme Court decision.

[Soli Salgado is an NCR Bertelsen intern. Her email address is] 

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