In the most closely-watched death penalty case in years, the U.S. Supreme Court on Monday ruled 5-4 (pdf) that Oklahoma can use the controversial and experimental execution drug midazolam that was behind the last year's horrific killing of 38-year-old man Clayton Lockett—who writhed and groaned for 43 minutes before ultimately succumbing to a heart attack.
The decision not only gives the approval for states to use a killing method that many regard as torture, but it also amounts to an ideological defense of the death penalty itself—however cruel. Writing for the majority opinion, Justice Samuel Alito stated:
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." And because some risk of pain is inherent in any method of execution, we have held that the Constitution does not require the avoidance of all risk of pain. 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 ruling was slammed by dissenting justices as deeply inhumane.
Justice Sonia Sotomayor—joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan—wrote that the majority decision "leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake."
"[U]nder the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake: because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated," the dissent states.
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In a separate dissent authored by Breyer and joined by Ginsburg, the justices question the lawfulness of state executions overall, writing it is "highly likely that the death penalty violates the Eighth Amendment."
Four people incarcerated on death row—one of whom has since been executed—brought the case Glossip v. Gross, arguing that the state's use of midazolam in lethal injections violates the Eighth Amendment prohibition of cruel and unusual punishment. The drug has been used in executions across the country due to a shortage of other lethal injection drugs—driven by a European boycott of the death penalty.
For its lethal injection procedure, Oklahoma uses three drugs: to anesthetize, paralyze, and stop the person's heart. The plaintiffs argued that use of midazolam as an anesthetic does not adequately protect them against pain, as it is a sedative used to treat anxiety and does not have the ability to make individuals unconscious.
Sixteen pharmacology professors agreed with this argument in an amicus brief: "Midazolam is incapable of rendering an inmate unconscious prior to the injection of the second and third drugs in the State of Oklahoma's lethal injection protocol."
Meanwhile, the credibility of Oklahoma's key witness, Dr. Roswell Lee Evans, was called into question by numerous factors, including his use of 150 pages of printouts from drugs.com, a website whose disclaimer indicates its contents are "not intended for medical advice, diagnosis, or treatment."
Critics charged that the Supreme Court's decision flies in the face of evidence and underscores the cruelty of the death penalty overall.
"Today’s 5-4 decision ignores the evidence and endorses a state’s right to torture people to death absent any other alternative," said Cassandra Stubbs, director of the Capital Punishment Project of the American Civil Liberties Union, in a press statement released Monday.
"As powerfully set forth in the dissent, capital punishment in the United States is unreliable and arbitrary, racially biased and geographically skewed," Stubbs continued. "Much of America has turned away from the death penalty, leaving only a handful of counties insisting on putting people to death. The time has come to end this nation’s disastrous experiment with capital punishment."