Death is different, according to the US Supreme Court.
Capital punishment—execution—is an extraordinary measure, reserved for the worst criminal offenders. It raises the toughest ethical questions for American courts, and there’s no unanimity on the answers, especially not when it comes to lethal injection.
The US Constitution’s Eighth Amendment prohibits the infliction of “cruel and unusual punishment.” What constitutes cruelty, however, is controversial.
On Feb. 21, US Supreme Court Justice Sonia Sotomayor, joined by Justice Stephen Breyer, disagreed with her colleagues’ decision not to review a death row inmate’s appeal that challenged the legality of Alabama’s lethal injection drug cocktail. The inmate, Thomas Arthur, argued the cocktail violates the constitutional prohibition on cruelty because one of its ingredients, midazolam, fails to put prisoners in an unconscious state during execution, allowing them to feel excruciating pain.
The Supreme Court decided not to review the appeal. But midazolam hasn’t exactly been cleared of cruelty charges in the court of public opinion, or in judicial opinions. Sotomayor writes, “Like a hangman’s poorly tied noose or a malfunctioning electric chair, midazolam might render our latest method of execution too much for our conscience—and the Constitution—to bear.”
Lethal injection is generally carried out in three steps. First, prisoners are given a sedative to make them unconscious and unable to feel pain. Next, a painful paralytic agent is administered to induce suffocation. Finally, a drug that triggers cardiac arrest is injected.
Execution without an adequate sedative produces a “nightmarish death,” Sotomayor wrote in a dissenting opinion, leaving the condemned conscious to suffer “what may well be the chemical equivalent of being burned at the stake.”
States used to use sodium thiopental to induce unconsciousness during executions. They started switching to midazolam after Hospira, the sole US manufacturer of sodium thiopental, ceased to make that drug in 2011. But evidence suggests midazolam doesn’t do what it’s meant to—there is a “ceiling effect,” an amount of pain past which the drug won’t anesthetize a person.
In 2014, Oklahoma prisoner Clayton Lockett was the first person on death row in the state to be injected with a midazolam cocktail. He woke up 14 minutes into his execution…after he’d been declared unconscious. He spoke, writhed, and seemed to be in agony for the next 30 minutes before finally dying.
After Lockett’s gruesome death, a group of 21 Oklahoma death row inmates challenged the state’s plan to up the dosage of midazolam but continue with the lethal injection protocol. Four of the inmates—including Richard Glossip—sought temporary stays of the state program, arguing midazolam has limited anesthetic effects and more of the drug wouldn’t work better. Instead, they suggested the state use sodium thiopental or pentobarbital.
The four prisoners’ request for an injunction was denied in the district court, a decision affirmed by the 10th Circuit Court of Appeals. The Supreme Court agreed to hear the appeal.
In Glossip v. Gross, the majority of the high court—five out of nine justices—found no error in the district court’s ruling that midazolam is “highly likely” to render the condemned insensitive to pain, or its reasoning that two alternative drugs the prisoners proposed weren’t a “known and available alternative method” of execution in Oklahoma. The majority noted that the two alternative barbiturates suggested by the prisoners are no longer sold in the US due to pressure from death penalty opponents, and attempts to obtain them from abroad have also been thwarted.
In January 2015, Oklahoma resumed lethal injection with midazolam. Lockett’s execution was determined to have been botched by his resistance during injection, preventing the full midazolam dose to be dispensed. So the state upped the mandatory dosage for the execution of Charles Frederick Warner, condemned for the 1997 murder of an infant.
Warner showed no signs of physical distress during the 18-minute execution, CBS reported (though the drug protocol does include a paralyzing injection that would make movement difficult). But, he reportedly spoke during the process: “My body is on fire,” he said.
Thomas Arthur killed his girlfriend’s relative in 1977 and was sentenced to life in prison; out on work release in 1982, he murdered his lover’s husband, and was sentenced to death. After years of fighting the sentence, Arthur gave up arguing that the state should let him keep his life; instead, he started fighting about how exactly the state planned to kill him. In 2007, he filed the first of three Eighth Amendment challenges based on a federal statute. The last, submitted in 2011, was finally denied by the 11th Circuit in 2016.
The decision was based on the circuit court’s reading of Glossip.
Arthur had argued that Alabama’s use of midazolam was unconstitutionally cruel and that a firing squad was a less-painful alternative than the state’s default execution method, which is lethal injection. Sotomayor, in her dissenting opinion, wrote that Arthur showed “significant evidence that Alabama’s current lethal-injection protocol will result in intolerable and needless agony” and noted that he had even proposed an alternative—death by firing squad.
Still, his claim was denied—without the 11th Circuit Court of Appeals even considering the evidence that midazolam doesn’t work to mitigate pain—because Alabama law does not expressly permit execution by firing squad, so it’s not a “known and available” alternative under Glossip. In other words, the substance of Arthur’s arguments about cruelty weren’t reviewed because he didn’t propose an alternative method of execution the state already accepts.
Sotomayor argues that this is why the Glossip decision must be reviewed. Before Glossip, she argues, prisoners only needed to prove the state execution method “entails a substantial risk of severe pain” to bring an Eighth Amendment challenge. Since then, a condemned prisoner must show that same risk of pain and propose a “known and available alternative method of execution that entails a lesser risk of pain.”
It’s a “macabre challenge,” she writes. Despite that, Arthur’s claim actually met the requirements of Glossip—at least in spirit. Practically, though, it did not, because Arthurs’s suggestion of a firing squad was not “a known and available alternative.” Sotomayor’s argues that the Glossip standard is flawed, because states can use it to immunize themselves from full judicial review of unconstitutional cruelty claims by the condemned.
The court majority, of course, did not agree,
But midazolam still faces challenges, and the high court will no doubt deal with the difficult questions presented by this type of death penalty appeal again.
Florida and Arizona have already barred the use of midazolam in executions. A federal magistrate judge in January ruled that Ohio’s inclusion of the drug in its lethal injection protocol also raises concerns about unconstitutional cruelty—the 119-page order temporarily halted executions there, and the Sixth Circuit Court of Appeals will hear arguments in that case on March 7.
Some states bar the death penalty altogether, however, and those that do have it approve various approaches to execution, including electrocution and lethal gas. Utah allows firing squads and New Hampshire permits hanging in some circumstances. Nineteen states and Washington, DC have officially abolished capital punishment.
According to Amnesty International, more than two thirds of nations worldwide—140 in total—have no death penalty or don’t execute prisoners despite having a law on the books. Based on figures from 2015, the US is fifth internationally in prisoner executions, the only G7 nation on this dubious top-five list, which is headed up by China, Iran, Pakistan, and Saudi Arabia.