The Supreme Court said Monday that a drug procedure used in problematic executions last year is constitutional, rejecting arguments that using this sedative in a lethal injection amounts to cruel and unusual punishment.
So what does this mean for the death penalty in the United States? In the short term, it means Oklahoma, where the case originated, can resume executions, and other states that halted executions want to do the same. In the longer term, though, it is not immediately clear precisely how the court’s actions will reverberate across the capital punishment landscape.
This case focused on midazolam, a sedative used in executions last year in Oklahoma, Arizona and Ohio. In Oklahoma, an inmate kicked and grimaced before dying 43 minutes after the execution began, while inmates in Arizona and Ohio remained alive, gasping and snorting, for unusually long periods of time.
In the majority opinion, written by Justice Samuel A. Alito Jr., five justices said that they agreed with a lower court’s determination that prisoners in Oklahoma failed to prove that a large doze of midazolam “entails a substantial risk of severe pain.”
Going beyond that sentiment, Alito wrote that it is impossible to avoid any risk of pain, making that danger an unavoidable part of having capital punishment. This debate played out in the concurring and dissenting opinions filed by his colleagues, who discussed whether the death penalty itself was constitutional, but was not much of a factor in the majority opinion.
“[B]ecause some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain,” Alito wrote. “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”
This ruling comes amid a fractured time for capital punishment in the United States, as states are struggling to find lethal injection drugs due to an ongoing shortage.
On Monday, experts they had not heard so far of states scrambling after the decision to adopt midazolam, which even before the bungled executions was not adopted widely. And they pointed out that this ruling appeared to be more narrow than a 2008 decision involving Kentucky’s lethal injection protocol, which at the time was similar to what states across the country used.
“This is a narrow decision involving one drug in one state,” said Deborah W. Denno, a Fordham University professor who studies the death penalty and has been critical of the lethal injection process.
The latest ruling involves “a drug that’s used in a handful of states, and hasn’t been used all that much,” she said. “Is it going to increase? It’s unclear.”
Experts have said it is not known whether midazolam can produce a deep enough level of unconsciousness to prevent an inmate from feeling pain from the injections that follow. In the briefs filed for this case, midazolam’s effectiveness was repeatedly the focus, even as the debate during the oral arguments and across the dissents and concurrences often focused on larger issues of the death penalty.
“I don’t think it’s a glowing endorsement of midazolam as the solution states have been looking for,” said Richard Dieter, a senior program director at the Death Penalty Information Center. “Its risks are apparent. I don’t think a lot of states are going to jump toward midazolam just because the Supreme Court said its permissible. It’s still a risky experiment.”
Officials in Texas and Missouri said that both states — two of the most active death-penalty states in the country — were planning to continue carrying out upcoming executions with pentobarbital.
A spokesman for the Texas Department of Criminal Justice, which earlier this year was running out of lethal injection drugs before obtaining a new batch, said in a statement that the state is looking at “all options including the continued use of pentobarbital or alternate drugs.” But the department used the same language earlier this year, so it was not a direct response to the ruling.
In other places, there did not appear to be any immediate changes. Virginia approved midazolam as an execution drug last year, though it has not used it yet. The state’s Department of Corrections said that the midazolam it has expires at the end of September, and there are no scheduled executions. In Arizona, that state’s Department of Corrections was reviewing the court’s decision, a spokesman said, and its current protocols still include midazolam as one of the options for carrying out an execution.
Ohio, site of one of the troubling executions last year, said in January it was dropping midazolam and announced that it was postponing all executions scheduled for 2015 while it obtained new lethal injection drugs. A spokesperson did not respond to a request for comment Monday, but the department did not announce any changes to its lethal injection protocol, which currently only allows for thiopental sodium and pentobarbital.
Meanwhile, in Oklahoma, the state is cleared to resume using a three-drug combination that includes midazolam. Oklahoma authorities announced on Monday plans to resume executions, having halted three earlier this year while it awaited the Supreme Court’s decision.
The three surviving inmates named in the case were convicted of murder and sentenced to death, while the fourth was executed in January, shortly before the justices took the case. In its court filings, Oklahoma laid out the crimes for which each man was convicted: Richard Glossip hired someone to kill his employer, John Grant stabbed and killed a prison food service supervisor while in jail and Benjamin Cole snapped his 9-month-old daughter’s spine.
“Now that the legal issues have been settled, the state can proceed with ensuring that justice is served for the victims of these horrible and tragic crimes,” Oklahoma Attorney General Scott Pruitt said in a statement, vowing to seek new execution dates.
In addition to Oklahoma, judges in Alabama and Florida had halted executions because both states had protocols similar to the one being considered by the Supreme Court. Officials in both states said Monday they also wanted to resume executions now that the protocol was upheld.
Ultimately, though, Dieter said the case may be remembered more for the sprawling and analytical dissent written by Justice Stephen G. Breyer and joined by Justice Ruth Bader Ginsburg. Breyer said that he came to the conclusion that it is “highly likely” that the death penalty violates the Eighth Amendment, outlining an array of problems raised by opponents of capital punishment and chronicled in news reports over the years.
“Because some years from now we will have a case reviewing the constitutionality of the death penalty in America, and it will be noted that some of the problems were presented earlier in an unusual case about lethal injection and some of the justices said that’s only part of the problem,” Dieter said.
In the meantime, he said it was likely other recent trends would continue: Fewer states would carry out executions, while those that want to execute inmates would still search for new drugs and broach other options (something seen in Utah’s revival of the firing squad, Oklahoma’s adoption of nitrogen gas and Tennessee’s expansion of the electric chair as backups).
“And there will be a certain routine-ness about the death penalty until something else goes wrong,” Dieter said. “And in in the background will be this larger debate.”