By a vote of 5–4, the Supreme Court ruled Monday that the use of the lethal injection drug midazolam does not constitute cruel and unusual punishment. The ruling comes more than a year after the botched executions of several inmates who remained conscious and experienced pain as they were put to death.
According to the majority opinion written by Justice Samuel Alito, “petitioners have failed to establish a likelihood of success on the merits of their claim that the use of midazolam violates the Eighth Amendment. To succeed on an Eighth Amendment method-of execution claim, a prisoner must establish that the method creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives. Petitioners failed to establish that any risk of harm was substantial when compared to a known and available alternative method of execution. Petitioners have suggested that Oklahoma could execute them using sodium thiopental or pentobarbital, but the District Court did not commit a clear error when it found that those drugs are unavailable to the State.”
In her dissent, Justice Sotomayor wrote, “as a result, [the Court] leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.”
Midazolam has been used in many states as the first drug in a three-part cocktail, but opponents of its use — including pharmacologists and former attorneys general — argue the anesthetic is not strong enough to induce a “deep, coma-like unconsciousness.” After Oklahoma inmate Clayton Lockett gasped for 43 minutes, four more death row inmates in the state challenged the use of midazolam on the basis that it may not reliably sedate them. Inmates also petitioned the court on the basis that midazolam has a ceiling effect, meaning that increasing the dosage does not make the drug more likely to work. The court denied the stay of one of the inmates, Charles Warner, but reversed course and agreed to take up the case on the day after he was put to death. The three remaining inmates were subsequently granted stays.
But even if SCOTUS had ruled the other way, states wouldn’t be in too much of a bind, as they’ve previously come up with creative solutions to carry out capital punishment in the face of logistical obstacles. For instance, international manufacturers stopped selling lethal injection drugs to the U.S., including the anesthetics used for executions, so states have come to rely on unregulated compounding pharmacies to produce alternatives like midalozam. The pharmacies have no federal oversight, and make untested drugs — many of which are composed of low-quality chemicals — in large quantities. And to avoid lethal injection restrictions altogether, some states are turning to other execution methods, such as firing squad, electric chair, and nitrogen gas chambers.