Robert J. Smith and Charles J. Ogletree Jr. are professors at the University of North Carolina and Harvard law schools, respectively.
Last week, the U.S. Supreme Court heard oral arguments in a death penalty case, Glossip v. Gross, challenging the use of midazolam — a drug intended to induce an anesthetic and unresponsive state — in executions. The court must consider whether midazolam’s use violates the Eighth Amendment’s ban on cruel and unusual punishment, and specifically whether there is an intolerable risk that the drug, which has been tied to at least three botched executions, will cause gratuitous suffering.
Doctors have referred to the use of midazolam as “a failed experiment.” Sen. John McCain (R-Ariz.) labeled a botched execution in Arizona “torture.” And Justice Elena Kagan observed during oral arguments that regaining consciousness during an execution by lethal injection is “like being burned alive.”
Instead of focusing narrowly on the risk of gratuitous suffering, however, Justices Antonin Scalia and Samuel A. Alito Jr. turned their attention to why Oklahoma employs midazolam. In much the same way that the American Medical Association and the American College of Physicians counsel doctors to refuse to participate in executions, pharmaceutical companies have ceased supplying states with lethal-injection drugs. Midazolam became the drug du jour when it proved to be the only one that states such as Oklahoma could get their hands on. Scalia placed the blame for this shortage on the death penalty “abolitionist movement.”
Alito was more specific, stating that if the court was to prohibit the use of midazolam in lethal injection, the court’s decision could be interpreted as rewarding or condoning the methods used by death penalty abolitionists: “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Anthony M. Kennedy jumped into the fray, as well: “What bearing, if any, should we put on the fact that there is a method but that it’s not available because of opposition to the death penalty? What relevance does that have?”
To answer the question: The fact that some pharmaceutical companies do not want to sell execution drugs to state corrections departments tells us nothing about whether midazolam presents an intolerable risk that petitioner Richard Glossip will endure gratuitous suffering if the drug is used to render him unconscious.
It almost sounded as though Scalia and Alito want to apply the doctrine known as “forfeiture by wrongdoing,” which prohibits a defendant from benefiting when he creates the circumstances that deprive him of a constitutional right. (For example, a defendant who kills a witness who was set to testify against him cannot complain that the absence of the witness at trial violates his Sixth Amendment right to confrontation.) But that doctrine makes no sense in this context because it requires intentional wrongdoing.
It is laughably simplistic to conclude that some loosely defined group of “death penalty abolitionists” coerced billion-dollar, multinational pharmaceutical corporations into doing anything not in their self-interest. A much more likely scenario is that some companies believed that enough of the people who buy drugs from them would be so offended by their facilitation of executions that they would be lost as customers. That’s not wrongdoing; it’s free-market economics.
Or perhaps some companies were convinced by the moral argument that their drugs should be used to extend, not end, life. Much as when corporations were persuaded to divest from South Africa during apartheid, it would be a tribute to the integrity of our democracy if a relatively powerless and moneyless group of citizens could use the moral force of an argument to obtain a specific outcome.
But even if you accept the premise that “death penalty abolitionists” convinced Big Pharma to stop selling lethal-injection drugs, it doesn’t change the fact that Glossip is not an activist member of the death penalty “abolitionist movement,” nor did he directly or indirectly lobby pharmaceutical companies to stop selling lethal-injection drugs. As a condemned prisoner, he lives in nearly complete isolation on Oklahoma’s death row. He did not waive, and the court should not ignore, his right to be free from gratuitous suffering based on the activities of some unnamed political activists whom he presumably doesn’t even know.
Thus, while the political circumstances prompting Oklahoma’s use of midazolam may personally trouble Alito and Scalia, in the end they have no bearing on the only question before the court: Will the justices tolerate the risk of pain and suffering that experimenting with midazolam presents?
Last year, in Oklahoma, Clayton Lockett regained consciousness during the execution despite being injected with midazolam. He struggled, moaned and gasped for air and died 43 minutes after receiving the injection. In Ohio, Dennis McGuire struggled to free himself from restraints as he coughed and choked for roughly 10 minutes. In Arizona, Joseph Wood gasped for air 600 times in the nearly two hours before he died. On the question of acceptable risk, the gruesome details of the three most recent botched executions speak for themselves.