Supreme Court Narrowly Upholds Use of Lethal Injection Drug

On June 29, the U.S. Supreme Court held (5 – 4) in Glossip v. Gross that Oklahoma inmates ​“failed to estab­lish a like­li­hood of suc­cess on the mer­its of their claim that the use of mida­zo­lam vio­lates the Eighth Amendment.” Three inmates on Oklahoma’s death row had chal­lenged the state’s use of mida­zo­lam as the first drug in a three-drug pro­to­col, say­ing that it ​“fails to ren­der a per­son insen­sate to pain.” 

In a nar­row deci­sion writ­ten by Justice Samuel Alito, the Court deferred to a District Court rul­ing uphold­ing the use of mida­zo­lam. Justice Alito said that, in order to pre­vail, the inmates would have had to iden­ti­fy a ​“known and avail­able alter­na­tive method” that has a low­er risk of pain. The deci­sion will allow states that use mida­zo­lam, includ­ing Oklahoma, to resume exe­cu­tions, though they can still consider alternatives. 

In a sweep­ing dis­sent­ing opin­ion rais­ing deep con­cerns about the death penal­ty itself, Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, said, ​“I would ask for full brief­ing on a more basic ques­tion: whether the death penal­ty vio­lates the Constitution.…Today’s admin­is­tra­tion of the death penal­ty involves three fun­da­men­tal con­sti­tu­tion­al defects: (1) seri­ous unre­li­a­bil­i­ty, (2) arbi­trari­ness in appli­ca­tion, and (3) uncon­scionably long delays that under­mine the death penalty’s peno­log­i­cal pur­pose. Perhaps as a result, (4) most places with­in the United States have aban­doned its use.”

Dale Baich, one of the attor­neys for the Oklahoma inmates, react­ed to the Court’s rul­ing, stat­ing, ​“Today’s rul­ing, which allows depart­ments of cor­rec­tions to use mida­zo­lam in lethal injec­tion exe­cu­tions, con­tra­dicts the sci­en­tif­ic and med­ical under­stand­ing of the drug’s prop­er­ties. Because the Court declined to require that states fol­low sci­en­tif­ic guide­lines in deter­min­ing their lethal injec­tion pro­ce­dures, states will be allowed to con­duct addi­tion­al human exper­i­men­ta­tion when they car­ry out exe­cu­tions by lethal injection. 

“Despite the Court’s unwill­ing­ness to step in on this impor­tant issue, and giv­en the sub­stan­tial risk of harm, lit­i­ga­tion sure­ly will con­tin­ue. We will con­tin­ue to work in the courts to hold the states account­able in order to try and pre­vent botched exe­cu­tions in the future.”