Supreme Court to decide constitutionality of lethal injection drugs

Next week, the Supreme Court is set to wade into debate over the constitutionality of certain drugs used for execution by lethal injection, as Glossip v. Gross comes before the bench.

Arguments will be heard on April 29 in the case, brought by several death-row inmates in Oklahoma, who claim that the use of midazolam, an anti-anxiety medication, as a sedative during lethal injection violates a prisoner’s Eighth Amendment right to be free from cruel and unusual punishment.

After a decision in the district court went in favor of the Oklahoma Department of Corrections, and was affirmed by the court of appeals, the case has reached the Supreme Court.

Executions by lethal injection in Oklahoma, as in most states, are done with a three-drug formula. The first drug is a sedative (typically a barbiturate such as sodium thiopental), which places the prisoner in a deep, coma-like state so the pain of the following two drugs is not felt. The second drug is a paralytic which prevents all movement and stops respiration by paralyzing the diaphragm. The third and final drug induces cardiac arrest. The second and third drugs are extremely painful when administered, so a sedative is needed to ensure there is no cruel and unusual punishment.

The Court will decide if it is constitutional for a state to carry out an execution using a three-drug protocol where the first drug allegedly cannot reliably produce deep, coma-like unconsciousness, and there is a substantial risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.

While Oklahoma previously used a barbiturate sedative as the first drug, this drug was changed to midazolam in 2014 when the original drug was not available on the market.

According to the petitioners, midazolam does not produce the required level of sedation to make an execution constitutional, and its use therefore violates Eighth Amendment rights. Midazolam is not approved for use as the sole anesthetic in invasive operations, and most states do not use this type of drug for lethal injections. Petitioners point to prior executions where, when midazolam was used, the prisoner awoke during the lethal injection and could feel and express the pain of the second and third drugs.

Respondents claim that midazolam is able to produce the necessary coma-like effects, and it is used in certain procedures as the sole anesthetic. The expert offered by the Department of Corrections confirmed midazolam’s ability to serve as the sedative, and the court was persuaded by his testimony. The respondents also argued that petitioner should have to point to an available alternative. The drug previously used, which petitioner claims is a better alternative, is not currently available on the market and therefore not a viable option. According to Respondent, midazolam is the most humane option to carry out executions by lethal injection.

Juliana Stiles is a pro bono intern at the National Constitution Center. She is also a second-year student at the University of Pennsylvania Law School.