Is Oklahoma's use of lethal injection cruel and unusual?

Washington D.C., May 2, 2015 / 05:01 am

The U.S. Supreme Court heard oral arguments Wednesday in a case challenging the use of the lethal injection in the United States, following a number of botched executions.

Lawyers for three death-row inmates in Oklahoma argued that the state's three-drug protocol for executions violates constitutional bans on cruel and unusual punishment. The protocol includes the potentially unreliable sedative midazolam.

Midazolam was used in the controversial execution of Oklahoma inmate Clayton Lockett in 2014. Lockett's execution took more than forty minutes. Although he was sedated, Lockett's body writhed and he breathed heavily during the execution. Lockett eventually died of a heart attack.

Midazolam was also used in two other prolonged executions last year in Ohio and Arizona in which prisoners appeared to suffer.

Justice Elena Kagan asked Oklahoma officials May 29 during the arguments in Glossip v. Gross how they could justify using midazolam, which has not been proven to protect inmates from feeling the effects of the potassium chloride, which she described as "being burned alive from the inside."

"So suppose that we said, we're going to burn you at the stake, but before we do, we're going to use an anesthetic of completely unknown properties and unknown effects," Kagan said. "Maybe you won't feel it; maybe you will. We just can't tell. And you think that would be okay?"

Justice Samuel Alito countered that Oklahoma and other states have been forced to use midazolam because opponents of the death penalty have pressured drug companies to not produce or sell more reliable sedatives.

"Let's be honest about what's going on here," Alito said. "Executions can be carried out painlessly … is it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?"

The Supreme Court last took up the issue of lethal injection in 2008. In that case, Baze v. Reese, the court ruled that the standard three-drug protocol did not violate constitutional bans on cruel and unusual punishment. However, the court clarified that the first drug in any protocol must prevent inmates from experiencing the intense pain cause by the second and third drugs. The standard protocol approved in 2008 included sodium thiopental rather than midazolam.

Archbishop Paul Coakley of Oklahoma City reaffirmed his opposition to the death penalty in comments to CNA May 1.

"We don't end the cycle of violence by committing more violence," Archbishop Coakley said. "In all of these crimes, we lost a life, and the death penalty only serves to further devalue human dignity. When available, we should choose other non-lethal ways to ensure justice and protect society."

When the court announced plans in January to re-examine lethal injection protocol, Cardinal Sean O'Malley of Boston prayed that "the court's review of these protocols will lead to the recognition that institutionalized practices of violence against any person erode reverence for the sanctity of every human life."

"Capital punishment must end," said Cardinal O'Malley, who is also the head of the U.S. bishops' pro-life activities committee.

Archbishop Thomas Wenski, who leads the U.S. bishops' committee on domestic justice said the execution at the center of Glossip and Gross reveals "how the use of the death penalty devalues human life and diminishes respect for human dignity."  

Pope Francis has also called for the abolishment of all forms of the death penalty.

There are several possible outcomes to Glossip v. Gross. The court could send the case back to the district court for re-evaluation, or issue a ban on midazolam or clearer guidelines for lethal injection.

The Supreme Court had already issued, on Jan. 28, a stay of execution for the plaintiffs in the case, pending its final outcome.

In light of the controversy over the use of midazolam, several states are revisiting other methods of execution, including the electric chair, firing squad, or gas chamber. In March, Utah adopted a law legalizing a five-person firing squad as the official back-up method of execution for the state, should it be unable to obtain the three drugs necessary for lethal injection.