By ZIVA BRANSTETTER
By a 5-4 vote, the U.S. Supreme Court has upheld Oklahoma’s use of a controversial new drug in lethal injections, clearing the way for the state and others to resume executions.
The decision in Glossip v. Gross means Oklahoma can use the sedative to carry out three pending executions and others in the future. Executions have been on hold in Oklahoma and most other states since the inmates challenged use of the drug midazolam following a botched execution.
The plaintiffs argued that even without IV errors, use of midazolam would violate the Eighth Amendment’s ban on cruel and unusual punishment. They claimed midazolam, a sedative sold under the trade name Versed, was not sufficient to produce the “deep, comalike unconsciousness” needed to administer the second and third drugs.
Midazolam is typically given to reduce anxiety and is not approved or used as a stand-alone drug to render patients unconscious before surgery.
In a statement emailed to reporters, Attorney General Scott Pruitt said the ruling “preserves the ability of the Department of Corrections to proceed with carrying out the punishment of death.”
Justice Antonin Scalia, writing for the majority, states he was unconvinced by the inmates’ arguments that the drug was unreliable. He also rejected the argument — in a dissent by Justice Stephen Breyer — that the death penalty itself was likely unconstitutional.
“Time and again, the People have voted to exact the death penalty as punishment for the most serious of crimes,” Scalia wrote. “Time and again, this Court has upheld that decision. And time and again, a vocal minority of this Court has insisted that things have ‘changed radically’ … and has sought to replace the judgments of the People with their own standards of decency.”
Justice Stephen Breyer, writing for the dissenting justices, argued that the death penalty is arbitrary, ineffective and cruel due to the way it is carried out from state to state. He argued that with a declining number of states carrying out executions, the death penalty has become an “unusual” punishment in violation of the Eighth Amendment.
He cited statistics showing that only 11 states carry out executions regularly and three of those states — Texas, Missouri and Florida — accounted for 80 percent of all executions in 2014.
“The imposition and implementation of the death penalty seems capricious, random, indeed, arbitrary. From a defendant’s perspective, to receive that sentence, and certainly to find it implemented, is the equivalent of being struck by lightning,” Breyer wrote.
“How then can we reconcile the death penalty with the demands of a Constitution that first and foremost insists upon a rule of law?”
The inmates filed the lawsuit challenging Oklahoma’s use of midazolam last year after the botched execution of Clayton Lockett. A federal district judge and the 10th U.S. Circuit Court of Appeals upheld the drug’s use and the inmates appealed to the U.S. Supreme Court.
Oklahoma and five other states — Florida, Alabama, Arizona, Louisiana and Virginia — include midazolam in their lethal injection protocols. When Arizona used the drug last July, it took Joseph Wood two hours to die.
The Supreme Court heard arguments in the case April 29, exactly one year after Lockett’s 43-minute execution. After a doctor declared Lockett unconscious, he rose up from the gurney, mumbled and writhed in pain.
The prison’s warden ordered the blinds closed in the death chamber and reporters were ushered out of the room. Lockett died on the gurney 43 minutes after the execution began.
A state investigation found Lockett’s IV had been inserted improperly, causing the drugs to leak into his tissue instead.
Records obtained during a lawsuit against the state revealed a chaotic, bloody scene inside the execution chamber. Lockett had to help the doctor find a vein to insert the IV.
In its 2008 ruling upholding lethal injection — a Kentucky case known as Baze v. Rees — the Court acknowledged that if an inmate is not rendered unconscious by the first drug, “there is a substantial, constitutionally unacceptable risk of suffocation” and pain from the second and third drugs.
Previously, Oklahoma used pentobarbital, a barbiturate. In 2011, the European manufacturer of the drug blocked its use in executions, leaving states to find alternate supplies from generic manufacturers or compounding pharmacies.
Oklahoma switched to midazolam after the attorney general’s office claimed pentobarbital was unavailable for Lockett’s execution. In briefs filed with the Supreme Court, Pruitt’s office argued that the pharmacy supplying the state’s pentobarbital faced “intense pressure” from opponents of the death penalty.
As proof, Pruitt’s office filed a heavily redacted letter it claimed was sent to the Oklahoma Department of Corrections by the pharmacy. However, as BuzzFeed reported, the pharmacy was not the state’s supplier and had actually sent the letter to officials in Texas.
Pruitt notified the court his office had made an “inadvertent citation error.”
During district court hearings in the case, current and former prison officials testified about political pressure to find an alternate drug and the attorney general’s role in choosing midazolam.
In their challenge to the state’s use of midazolam, the plaintiffs took issue with expert testimony and claimed the district court erred in its decision. The majority opinion rejected arguments that the state’s experts were wrong about midazolam.
“They were duly convicted and sentenced. … And now, acknowledging that their convictions are unassailable, they ask us for clemency, as though clemency were ours to give,” Scalia wrote.
“The response is also familiar: they have discovered the lost folios of Shakespeare, insist that now, at long last, the death penalty must be abolished for good. Mind you, not once in the history of the American Republic has this Court ever suggested the death penalty is categorically impermissible.”
The opinion took Breyer to task for seeking to overturn the death penalty.
“Perhaps Justice Breyer is more forgiving — or more enlightened — than those who, like Kant, believe that death is the only just punishment for taking a life. I would not presume to tell parents whose life has been forever altered by the brutal murder of a child that life imprisonment is punishment enough.”
Pruitt’s office said the attorney general will now notify the state Court of Criminal Appeals that it can set execution dates for Richard Glossip, John Marion Grant and Benjamin Robert Cole.