SCOTUS rules against Oklahoma inmates challenging executions with midazolam

June 29, 2015

The SCOTUS held today by a vote of 5-4 in Glossip v. Gross, that three Oklahoma inmates awaiting execution failed to establish a likelihood of success on the merits of their claim that the use of midazolam as the first drug administered in a three-drug execution cocktail violates the Eighth Amendment prohibition against cruel and unusual punishmen because it “fails to render a person insensate to pain.”

Midazolam is a Schedule IV controlled substance, a benzodiazepine in the same class as diazepam, lorazepam, alprazolam and clonazepam. It has been approved for use in treating epileptic seizures, anxiety disorders and agitation. It is normally administered to patients to relax them before undergoing surgery or a medical procedure. It has never been approved by the manufacturer and the FDA for use in rendering people unconscious before administering a paralytic agent to inhibit all muscular-skeletal movements and potassium chloride to induce cardiac arrest.

Oklahoma and other states started using midazolam after the manufacturer of sodium thiopental, the barbiturate used to induce a state of unconsciousness before administering the other two drugs, objected to it being used to execute people and refused to sell it to any vendor who would sell or transfer it to states to use in executions.

The inmates based their argument on several botched executions where inmates appeared to be experiencing considerable distress before dying. They contended that midazolam failed to render those inmates unconscious while inducing a feeling described by one victim as burning up inside.

After a three-day evidentiary hearing, a United States District Court judge held that the inmates failed to identify an available alternative method that presented a substantially less severe risk of pain. The judge also held that the inmates failed to establish a likelihood that the use of midazolam created a risk of severe pain. The Tenth Circuit affirmed the decision.

Writing for the majority, Justice Alito affirmed the district court decision holding that the inmates failed to establish a likelihood of success on their Eighth Amendment claim.

Justice Sotomayor dissented, joined by Justice Breyer and Justice Kagan. Condemning the execution with midazolam as the equivalent of burning someone to death on a stake, she said,

The Court’s determination that the use of midazolam poses no objectively intolerable risk of severe pain is fac­tually wrong. The Court’s conclusion that petitioners’ challenge also fails because they identified no available alternative means by which the State may kill them is legally indefensible.

/snip/

“By protecting even those convicted of heinous crimes,the Eighth Amendment reaffirms the duty of the govern­ment to respect the dignity of all persons.” Roper v. Simmons, 543 U. S. 551, 560 (2005). Today, however, the Court absolves the State of Oklahoma of this duty. It does so by misconstruing and ignoring the record evidence regarding the constitutional insufficiency of midazolam as a sedative in a three-drug lethal injection cocktail, and by imposing a wholly unprecedented obligation on the con­demned inmate to identify an available means for his orher own execution. The contortions necessary to save this particular lethal injection protocol are not worth the price.

I dissent.

Justice Breyer also wrote his own dissenting opinion, joined by Justice Ginsburg. He wrote,

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.

Breyer and Ginsburg with Sotomayor and Kagan close behind appear ready to stop tinkering with the machinery of death and decide that the death penalty violates the Eighth amendment, regardless of the underlying facts.

Read the slip opinion here: PDF


Time to permanently stop executions by lethal injection

February 24, 2014

Monday, February 24, 2014

Good morning:

The death penalty is back in the news today as Missouri gets ready to execute Michael Taylor by lethal injection on Wednesday for the rape and stabbing-death of 15-year-old Ann Harrison in 1989.

The issue is not a claim of innocence because Taylor has admitted to kidnapping her from a school bus-stop in Kansas City and committing the crimes with Roderick Nunley, who also is on death row.

The issue is about the manner of execution. Taylor’s lawyers claim that the State of Missouri plans to execute him by lethal injection using a secret mix of chemicals in violation of the Eighth Amendment prohibition against cruel and unusual punishment made applicable to the states by the Due Process Clause of the 14th Amendment.

This is a serious claim. For example, he barely avoided execution in 2006, when a court issued an order staying his execution after the doctor who carried out the executions by lethal injection admitted that he had used improper dosages.

The problem today is that the states can no longer use the three-drug cocktail approved for executions by a plurality of the United States Supreme Court in Baze v. Rees, 128 S.Ct. 1520, 1526-1527, 1537 (2008).

A total of 36 States have now adopted lethal injection as the exclusive or primary means of implementing the death penalty, making it by far the most prevalent method of execution in the United States. It is also the method used by the Federal Government. See 18 U.S.C. § 3591 et seq. (2000 ed. and Supp. V); App. to Brief for United States as Amicus Curiae 1a-6a (lethal injection protocol used by the Federal Bureau of Prisons).

Of these 36 States, at least 30 (including Kentucky) use the same combination of three drugs in their lethal injection protocols. See Workman v. Bredesen, 486 F.3d 896, 902 (C.A.6 2007). The first drug, sodium thiopental (also known as Pentathol), is a fast-acting barbiturate sedative that induces a deep, comalike unconsciousness when given in the amounts used for lethal injection. App. 762-763, 631-632. The second drug, pancuronium bromide (also known as Pavulon), is a paralytic agent that inhibits all muscular-skeletal movements and, by paralyzing the diaphragm, stops respiration. Id., at 763. Potassium chloride, the third drug, interferes with the electrical signals that stimulate the contractions of the heart, inducing cardiac arrest. Ibid. The proper administration of the first drug ensures that the prisoner does not experience any pain associated with the paralysis and cardiac arrest caused by the second and third drugs. Id., at 493-494, 541, 558-559.

/snip/

A stay of execution may not be granted on grounds such as those asserted here unless the condemned prisoner establishes that the State’s lethal injection protocol creates a demonstrated risk of severe pain. He must show that the risk is substantial when compared to the known and available alternatives. A State with a lethal injection protocol substantially similar to the protocol we uphold today would not create a risk that meets this standard.

Meanwhile, on January 21, 2011, Hospira (the only pharmaceutical company that manufactures sodium thiopental, which is also known as Pentothal) announced that it would no longer produce it.

The company issued the following explanation for its decision:

Hospira had intended to produce Pentothal at its Italian plant. In the last month, we’ve had ongoing dialogue with the Italian authorities concerning the use of Pentothal in capital punishment procedures in the United States – a use Hospira has never condoned. Italy’s intent is that we control the product all the way to the ultimate end user to prevent use in capital punishment. These discussions and internal deliberation, as well as conversations with wholesalers – the primary distributors of the product to customers – led us to believe we could not prevent the drug from being diverted to departments of corrections for use in capital punishment procedures.

The State of Ohio executed Dennis McGuire on January 16th using midazolam and hydromorphone that caused him to writhe in pain for 25 minutes before he died prompting Ohio Governor John Kasich to order an 8-month stay of execution for Gregory Lott in order to allow the Department of Corrections to review the state’s lethal injection procedure.

That was a good idea, given what happened, since the method of execution likely would not have satisfied the SCOTUS test.

Figuratively speaking, the State of Missouri “hit the streets” to find a drug to kill people.

The The Death Penalty Information Center reports,

In Missouri, the Director of the Department of Corrections testified [before the House Committee on Government Oversight and Accountability] that the state obtains its lethal injection drugs by sending a correctional official to another state with $11,000 in cash to pay a compounding pharmacy called The Apothecary Shoppe. The officer then hand delivers the drug to the department. At a legislative hearing on February 10, George Lombardi of the DOC said pentobarbital was obtained in Oklahoma by paying in cash in order to maintain the anonymity of the pharmacy. Also testifying was Jacob Luby, an attorney with the Death Penalty Litigation Center. Luby raised concerns that the drug would not be stored at the proper temperature in transport: “First, let’s address the fact that this drug is supposed to be kept frozen and not at room temperature,” Luby said. “We’ve got someone driving a drug across state lines after purchasing it in cash and delivering it to the department and until a few weeks ago, we didn’t even know who was selling us the drug.” Bills have been proposed in Missouri to require execution protocols to be more open to public scrutiny. The Department of Corrections is currently exempt from that process.

We now know why Missouri officials were so secretive about their method of acquiring Pentobarbitol, which is also known as Nembutal, and using it to execute people. The drug, which is similar to Pentothal, is produced by Lundbeck, a pharmaceutical company in Deerfield, IL. On January 26, 2011 the company contacted Gary C. Mohr, Director of the Ohio Department of Corrections and Rehabilitation and asked him to stop using Pentobarbitol to execute people.

The manufacturers of other drugs, such as propofol and phenobarbitol, also have objected to the use of their products to execute people and have taken steps to prevent states from acquiring them for that purpose.

The DPIC also reports:

Both the American Medical Association (AMA) and the National Association of Emergency Medical Technicians (NAEMT) recently issued public statements reminding members of their ethical obligation not to participate in legally authorized executions. As courts and legislatures throughout the country continue to struggle with questions related to lethal injection procedures, AMA president William G. Plested III noted that AMA policy clearly prohibits medical professionals from participating in executions because it “erodes public confidence in the medical profession.” The NAEMT issued a position paper stating that member participation in executions is forbidden because it “is inconsistent with the ethical precepts and goals of the EMS profession.”

Missouri’s determination to do whatever it needs to do, including acting in secret and paying cash to acquire drugs that will kill people is an absurd tinkering with the machinery of death that is both abhorrent and indefensible to reasonable people.

Death by lethal injection is the last of the “best” solutions for humane executions that do not violate the Eighth Amendment prohibition against cruel and unusual punishment.

The time has come to stop sentencing people to death, permanently stop executions by lethal injection or by any other method and convert all death sentences to life without parole.


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