In a 5-4 decision, the United States Supreme Court has ruled that Oklahoma's lethal injection protocol, which makes use of the controversial drug midazolam, is protected by the constitution. In the short term, this decision means executions in the four states that use the drug will proceed as normal. It also deals a blow to the growing movement against the death penalty.
Opponents argued that midazolam is an ineffective anesthetic
The Eighth Amendment forbids the use of "cruel and unusual punishments." For many years, one way to avoid such punishments during an execution was by using lethal injection; the method is widely considered to cause less suffering than the electric chair, for instance. But in the case brought before the Supreme Court, three people on death row — Richard Glossip, John Grant, and Benjamin Cole — argued that midazolam, the first drug used in Oklahoma's three-drug cocktail, is an ineffective anesthetic. People who are given the drug experience the pain caused by the other two drugs in the injection, they say.
Three high-profile "botched" executions involving midazolam in 2014 provided support for the case. In all three cases, the men appeared to regain consciousness during the procedure. There were also reports of them gasping and snorting for air, and moving around in pain.
However, Justice Samuel Alito argues that petitioners haven't identified suitable alternatives to the drug or method of execution, especially since the two drugs that could be used as substitutes, thiopental and pentobarbital, aren't available in Oklahoma. Also, the decision states that District Court didn't commit a clear error in choosing midazolam as an effective anesthetic.
The Court argued that petitioners failed to identify a suitable alternative
Midazolam is a sedative; the FDA has yet to classify it as a stand-alone anesthetic because the regulatory agency isn't sure it works the way it should. However, some states started using it as an anesthetic when they ran out of traditional lethal injection drugs. The reason they ran out is fairly simple: pharmaceutical companies refused to sell them certain anesthetics because they didn't want to be associated with executions.
This wasn't the first attempt at arguing such a case in the US. In 2008, in Baze v. Rees, the Court decided that Kentucky's lethal injection procedure was lawful because the state was using procedures that were similar to those used in other states. But a lot has changed since then. Finding the drugs needed for lethal injections has become increasingly difficult — so much so that Oklahoma and Utah passed laws that would allow them to use nitrogen gas and firing squads to carry out executions, respectively.
However, it is worth noting that support for the death penalty is falling in the US. Recent figures from the Pew Research Center found that only 56 percent of respondents are currently in favor of the practice. And in his dissent of today's decision, Justice Stephen Breyer argues that the death penalty is inherently cruel and therefore can't be considered constitutional. It's likely that the Supreme Court will hear a case on the matter in the future.