Let's be honest. Whether or not the death penalty, as a whole, is constitutional was never at issue in this case. The question regarding necessary standards and uniformity in the method for executing inmates, however, was in full display.
Now, there was some discussion in dissent, but I don't believe anyone honestly thought the death penalty would be declared unconstitutional when the dust settled. Regardless, the United States Supreme Court has issued its opinion in the Oklahoma death penalty case Glossip v. Gross. In the case, Oklahoma death row inmates asserted that the use of midazolam, a sedative, in lethal injections violated their Eighth Amendment right to be free from cruel and unusual punishment.
The inmates lost.
After hearing oral arguments regarding the case in April, the Supreme Court has considered the matter and issued the majority opinion upholding the use of midazolam in lethal injections.
In the majority opinion, Justice Alito wrote that the Court's ruling resulted from two main factors:
- The prisoners failed to identify a "known and available" alternative execution method with a lesser risk of pain, as required by Baze v. Rees.
- The District Court did not commit clear error when it ruled that the inmates failed to demonstrate that the use of midazolam as a sedative in the state's lethal injection protocol entails a substantial risk of severe pain.
The prior precedent established in Baze v. Rees kept the issues fairly narrow for the Supreme Court. The fact that the Court hung its hat on the lack of proposed alternatives to the lethal injection method used in Oklahoma shows that the death penalty as an institution was never in question. The nation's highest Court has repeatedly found capital punishment constitutional. Consequently, the Court has asserted that if execution is constitutional, then there must necessarily be a constitutional means of carrying out the death penalty.
In determining whether a method of execution--lethal injection in particular--does or does not violate the Eighth Amendment, the Supreme Court has continually noted that freedom from cruel and unusual punishment does not necessitate a painless death. In the Court's opinion in Glossip v. Gross, Justice Alito wrote:
"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 Oklahoma inmates filed the lawsuit after the state--like many others across the nation--was unable to get the sedatives it previously used in lethal injections: sodium thiopental and, subsequently, pentobarbital. The use of midazolam in lethal injections was considered experimental by the inmates, and their concerns it may be insufficient to render them unconscious before the lethal drugs were injected seemed to be supported by the apparently painful deaths of other inmates, including Dennis McGuire and Clayton Lockett.
But according to the Supreme Court, the inmates failed to identify a suitable alternative to Oklahoma's current cocktail. While the inmates did argue that both sodium thiopental and pentobarbital seemed to be more effective in delivering a state of unconsciousness that would have less risk of substantial pain, those drugs have become unavailable. Thus, although these drugs are "known," they are not "available" as required by Baze v. Rees in 2008.
Necessity is the mother of all invention.
As for the Supreme Court's conclusion that the District Court did not commit clear error in holding the inmates failed to show midazolam brought a substantial risk of pain, the Court pointed to the rulings of other lower courts that the use of midazolam is appropriate in lethal injections. The opinion also found the greatest contributing factor to the botched execution of Oklahoma inmate Clayton Lockett was not, in fact, the use of midazolam, but rather problems with administration of the lethal injection cocktail and the collapse of the inmate's vein during the attempted execution.
Consequently, the painful executions of Clayton Lockett and Joseph Wood, an Arizona inmate who was injected 15 times and who took two hours to die, were insufficient to prove that the use of midazolam had an unreasonable risk of substantial pain in violation of the Eighth Amendment. The Court was "not persuaded" that the use of midazolam in a three-drug lethal injection protocol is "sure or very likely to cause serious pain."
But how could someone ever establish that any chemical method is sure or very likely sure to cause serious pain? The Court did not elaborate much on this issue, instead relying on the notion that the lack of standards in administering the three-drug protocol at issue somehow shows that the method is constitutionally sufficient.
According to Justice Alito: "Aside from the Lockett execution, 12 other executions have been conducted using the three-drug protocol at issue here, and those appear to have been conducted without any significant problems." He notes that Lockett received a 100-milligram dose of midazolam, rather than the 500-milligram dose now required by Oklahoma's lethal injection protocol, and Wood received 15 doses of 50-milligrams over the span of two hours, rather than a single 500-milligram dose.
With the Supreme Court's ruling in Glossip v. Gross, death by lethal injection will live on in the United States, and any individual state will be free to test out any newly developed protocol it develops out of necessity. Oklahoma is already gearing up to move forward with the execution of three inmates, which were stayed pending the Supreme Court's decision.
At least the inmates won't face the untested use of nitrogen gas. Well, at least until Oklahoma runs out of death-penalty drugs.