On Tuesday, the U.S. Supreme Court declined to hear a death row inmate’s appeal challenging the constitutionality of the state of Alabama’s lethal injection protocol.
In a scathing dissent, Justice Sonia Sotomayor, who was joined by Justice Stephen Breyer, argued that the court should have considered whether the state of Alabama’s use of the controversial drug midazolam constituted cruel and unusual punishment. Midazolam has come under increased scrutiny after its use in three botched executions in Ohio, Oklahoma and Arizona.
The Supreme Court upheld the use of midazolam in a 2015 decision but said a state’s lethal injection system could be challenged if it presents a risk of severe pain and a less painful alternative is available.
“What cruel irony that the method that appears most humane may turn out to be our most cruel experiment yet,” Sotomayor wrote.
Thomas Arthur, who was scheduled to be put to death last November for killing his girlfriend’s husband, brought the appeal and received a last-minute stay while the justices considered his request for an alternative method of execution—one more humane than the state’s current lethal injection protocol, which involves the serial administration of midazolam followed by two other drugs.
Arthur’s attorneys argued that a single dose of pentobarbital or a firing squad would be more humane than the current lethal cocktail that includes midazolam.
In 2011, Alabama replaced sodium thiopental, the sedative used in its three-part execution process, with midazolam, which does not always render a death row inmate unconscious or in time, before the second drug that paralyzes the muscles and a third that stops the heart begin to take effect. This is the ghastly reality that Sotomayor takes pains to highlight:
Execution absent an adequate sedative thus produces a nightmarish death: The condemned prisoner is conscious but entirely paralyzed, unable to move or scream his agony, as he suffers “what may well be the chemical equivalent of being burned at the stake.” (Glossip v. Gross)
In an unusually long 18-page dissent, Sotomayor went on to say that the lower court ruling “permits states to immunize their methods of execution — no matter how cruel or how unusual — from judicial review.”
On June 29, 2015, the U.S. Supreme Court refused (5-4) to block Oklahoma‘s use of midazolam in executions. (Glossip v. Gross)
Until 2009, most states used a three-drug combination for lethal injections, leading with a barbiturate, usually sodium thiopental, a rapid-onset short-acting general anesthetic.
But corrections facilities have been facing shortages of lethal injection drugs for years, as more and more of the drugs were pulled from sale to prisons by manufacturers who did not want their products associated with human execution. Drugs, such as pentobarbital, are still used by veterinarians to euthanize animals.
As a result of a supply shortage, prisons have been left to improvise and several have turned to midazolam. According to the Death Penalty Information Center:
In fact, all of this is likely to occur even when the correctional staff has received adequate training and is skillful enough to administer the combination of drugs properly.
As Stephanie Pappas points out in Why Lethal Injection Is Getting Harder: “the supply problem highlights a long-standing issue with the medicalization of the death penalty: Doctors are not, generally speaking, on board.”
In fact, “the people most knowledgeable about the process of lethal injection — doctors, particularly anesthesiologists — are often reluctant to impart their insights and skills,” wrote Deborah Denno, a professor at the Fordham University School of Law in 2007.
Death row inmate Arthur was essentially arguing to be allowed to choose a more humane alternative method that was not “on the list” of executions approved by the state. Only two methods are currently available to Alabama death row inmates: lethal injection and electrocution. Both Justice Sotomayor and Justice Breyer seem to completely comprehend why Arthur might prefer a firing squad.
– Danielle Bizzarro