U.S. Supreme Court Allows Use of Execution Drug

WASHINGTON — The Supreme Court ruled on Monday against three death row inmates who had sought to bar the use of an execution drug they said risked causing excruciating pain.

Justice Samuel A. Alito Jr. wrote the majority opinion in the 5-to-4 decision. He was joined by the court’s four more conservative justices.

The drug, the sedative midazolam, played a part in three long and apparently painful executions last year. It was used in an effort to render inmates unconscious before they were injected with other, severely painful drugs.

Four condemned inmates in Oklahoma challenged the use of the drug, saying it did not reliably render the person unconscious and so violated the Eighth Amendment’s ban on cruel and unusual punishment. Lower courts disagreed.

Oklahoma and several other states started to use midazolam in executions after manufacturers in Europe and the United States refused to sell them the barbiturates that were traditionally used to produce unconsciousness.

Lawyers for the Oklahoma inmates, with the support of experts in pharmacology and anesthetics, said midazolam, even if properly administered, was unreliable. They pointed to three executions last year that seemed to go awry.

In April 2014, Clayton D. Lockett regained consciousness during the execution procedure, writhing and moaning after the intravenous line was improperly placed. In Ohio in January 2014 and in Arizona in July, prisoners appeared to gasp and choke for extended periods.

The Supreme Court last considered lethal injections in 2008, in Baze v. Rees, when it held that what was then the standard three-drug combination, using the barbiturate sodium thiopental as the first agent, did not violate the Eighth Amendment.

The new case, Glossip v. Gross, No.14-7955, originally included a fourth inmate, Charles F. Warner. But he was executed on Jan. 15 after the Supreme Court denied his request for a stay by a 5-to-4 vote.

A little more than a week later, the court agreed to hear the remaining inmates’ appeals, and a few days after that it stayed their executions.

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Source: The New York Times, Adam Liptak, June 29, 2015


Supreme Court upholds lethal injection procedure

The Supreme Court ruled 5 to 4 on Monday to uphold a procedure used by states to carry out executions by lethal injection.

The justices were considering a challenge brought by death-row inmates in Oklahoma, who allege that the use of a sedative called midazolam has resulted in troubling executions that violate the Constitution’s prohibition on cruel and unusual punishment. Problematic executions in Oklahoma and elsewhere have captured national headlines since early last year.

Justice Samuel A. Alito Jr. wrote for the majority that included Chief Justice John G. Roberts Jr. and Justices Antonin Scalia, Anthony M. Kennedy and Clarence Thomas.

Alito said the prisoners failed to identify a “known and available alternative method of execution that entails a lesser risk of pain,” which he said was required under the court’s previous ruling upholding lethal injection. And he said plaintiffs had failed to establish that a massive dose of midazolam “entails a substantial risk of severe pain.”

Justice Sonia Sotomayor wrote a dissent, joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer, and Elena Kagan. Breyer also wrote separately, saying: “I believe it is highly likely that the death penalty violates the Eight Amendment [protection against cruel and unusual punishment]. At the very least, the court should call for full briefing on the basic question.”

The case was the subject of a tense oral argument, with conservative and liberal justices unusually antagonistic with the lawyers and with each other. The comments showed a deep distrust of the lawyers trying to delay executions by objecting to the process used, and of state officials who minimize the risk of unconstitutional pain their procedures might cause.

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Source: The Washington Post, Robert Barnes, June 29, 2015


Supreme Court refuses to ban controversial method of execution

The Supreme Court refused Monday to limit states' use of a controversial execution method that opponents have likened to being burned alive. 

The court's conservative majority said lethal injection remains the most humane method of execution. During oral arguments in April, they had blamed opponents for exacerbating a shortage of drugs that has forced some states to experiment with less reliable alternatives. 

Justice Samuel Alito wrote the decision for the court. All 4 liberal justices dissented. 

To prohibit the use of midazolam, a sedative that has left some death row prisoners apparently able to feel pain from the next 2 drugs in a 3-drug cocktail, would have unfairly tied the states' hands, the justices ruled. 

The case, heard on the court's last day of oral arguments, was filed by 3 death row inmates challenging Oklahoma's method of lethal injection. A fourth inmate was put to death while the case was pending when the high court refused to halt his execution. 

Midazolam was used in 3 2014 executions in Oklahoma, Arizona and Ohio in which prisoners struggled, groaned or writhed in apparent pain during the administration of drugs used to paralyze them and stop their hearts. In 12 other executions, the drug cocktail did not cause obvious mishaps. 

The problems with lethal injections are the result of states' inability to find pharmacies willing to provide the drugs that can render prisoners incapable of feeling pain. Pharmacies in Europe routinely refuse to help because of broad opposition to capital punishment; the European Union imposed an export ban in 2011. As a result, many states have turned to state-regulated compounding pharmacies in a process that has been shrouded in secrecy. 

Last month, both the American Pharmacists Association and the International Academy of Compounding Pharmacists discouraged their members from participating in the process. The U.S. group called it "fundamentally contrary to the role of pharmacists as providers of health care." 

The difficulties involved in lethal injections are forcing states with capital punishment laws to rejuvenate backup methods once viewed as beyond the pale. Tennessee would allow electrocution, Utah death by firing squad. Now Oklahoma lawmakers are moving toward legalizing the use of nitrogen gas. 

7 states have abolished the death penalty since 2004, most recently Nebraska, where state legislators overrode Gov. Pete Ricketts' veto. Several other states have imposed moratoria on lethal injections because of problems, ranging from botched executions in Oklahoma and Ohio to a "cloudy" drug concoction in Georgia. 

In Oklahoma, death-row inmates Richard Glossip, John Grant and Benjamin Cole -- whose executions had been scheduled for January, February and March -- brought the latest lawsuit. Glossip was convicted of paying another man to kill the owner of the Oklahoma City budget motel where he worked as manager. He has long declared his innocence. 

The drug protocol in question is different from the one the high court upheld in a 2008 case from Kentucky. The court's 4 liberal justices claimed midazolam should be outlawed because it does not always prevent prisoners from feeling so much pain as to constitute cruel and unusual punishment, which the Constitution prohibits. Justice Elena Kagan likened it to "the feeling of being burned alive." 

During oral arguments, some of the high court's conservatives charged that a "guerrilla war" by death penalty "abolitionists" contributed to the myriad problems states face in obtaining drugs from manufacturers and pharmacies. 

Source: USA Today, June 29, 2015

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