In the latest of a series of decisions, this morning the Supreme Court ruled that a sedative called midazolam can legally be administered during lethal injections.
The case, Glossip V. Gross, debated if the drug—used as the first part of a cocktail meant to carry out the death penalty in Oklahoma, Arizona, Florida and Ohio—is effective in rendering inmates unconscious before other drugs are administered to paralyze the body and stop the heart. The suit was brought by three convicted inmates in Oklahoma who argued that there is no guarantee that a 500-milligram dose of midazolam is sedating enough to prevent pain—which would violate their Eighth Amendment right to be spared cruel and unusual punishment. Their challenge cited cases where the drug failed to sedate inmates, memorably Clayton Lockett, who painfully reacted to the lethal cocktail for 43 minutes before dying. Midazolam came into use after approved drug sodium thiopental became difficult to find when anti-death penalty advocates pressured pharmaceutical companies to withhold it from executions.
In the 5-4 decision, the justices found that there was no cause to interfere with the way states choose to carry out the death penalty. The conservative-leaning justices, led by Justice Samuel Alito who wrote the court’s opinion, felt that the suit was “guerrilla war against the death penalty” and that it wasn’t their place to interfere with the state.
While methods of execution have changed over the years, “[t]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.” Id., at 48. In Wilkerson v. Utah, 99 U. S. 130, 134–135 (1879), the Court upheld a sentence of death by firing squad. In In re Kemmler, supra, at 447–449, the Court rejected a challenge to the use of the electric chair. And the Court did not retreat from that holding even when presented with a case in which a State’s initial attempt to execute a pris- oner by electrocution was unsuccessful. Louisiana ex rel. Francis v. Resweber, 329 U. S. 459, 463–464 (1947) (plurality opinion). Most recently, in Baze, supra, seven Justices agreed that the three-drug protocol just discussed does not violate the Eighth Amendment.
Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” Id., at 47. And because some risk of pain is inherent in any method of execution, we have held that the Constitu- tion does not require the avoidance of all risk of pain. Ibid. 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.
The liberal-leaning justices, Ginsburg, Sotomayor and Kagen, led by Justice Breyer, disagreed. In his dissenting opinion, Breyer notably wrote, “But rather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” He discussed flaws in the system that sentence innocent people to death, cited evidence that the death penalty is disproportionately applied to people convicted of killing whites, and argued that the delay associated with the death penalty is in and of itself cruel punishment.