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Lethal Injection Drugs in the US: Glossip v Gross

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About The Author

Alexander Barbour (Former Criminal & Environmental Law Editor)

Alex has recently graduated from the University of Birmingham, achieving a First Class Honours degree in Law. His main interests lie in issues concerning human rights, criminal justice and the environment. Alex recently received the Albion Richardson Award from Gray’s Inn to fund the BPTC, which he is currently undertaking at the University of Law, Birmingham.

Capital punishment is rarely out of the spotlight, due to persistent questions over the humaneness of the methods employed. Many execution methods can be said to amount to torture, inhuman or degrading treatment, from the more ancient, such as the Brazen Bull, boiling, or burning, to those still used today, such as stoning or beheading. Lethal injection, on the other hand, is seen as the most ‘humane’ method of execution. Though the recent US Supreme Court case of Glossip v Gross appears to confirm that, the reasoning of the majority in that case lacks legitimacy upon closer scrutiny.

Lethal injection

Lethal injection is the practice of injecting a fatal dose of drugs into someone with the purpose of causing death. It was first introduced in Oklahoma in 1977, and first used in Texas in 1983. Today, it is the most prevalent method of execution in the US, and is becoming increasingly popular in Asia, in particular China, where it was first introduced in 1996 in response to issues relating to cruelty involved in the practice of shooting. The practice remains most extensively used in the US, however, where all 31 states that retain the death penalty use lethal injection as their sole or main method of execution, with 35 executions by lethal injection carried out in 2014.

Botched executions are an issue in relation to any method of execution. An execution is ‘botched’ if it involves unanticipated problems or delays, and is a good indicator of the efficacy of a particular method. In relation to lethal injection, there have been a great number of high-profile botched executions, include those of Clayton Lockett, Romell Bloom and Joseph Wood.

Clayton Lockett, for example, was executed in the state of Oklahoma using a previously untested sequence of drugs, which formed the basis of the petition in Glossip v Gross 576 U.S. (2015). Lockett’s executioner struggled to find a vein suitable to insert the intravenous line to inject the drugs, before one was eventually found in his groin area after an hour. Approximately ten minutes after the administration of the first drugs, a physician present in the chamber pronounced Lockett unconscious, and the execution continued. The final two drugs were injected, both known to cause excruciating pain to a conscious person. Three minutes later, Lockett was conscious. He ‘struggled violently, groaned and writhed, lifting his shoulders and head from the gurney’, saying ‘this s**t is f***ing with my mind … something is wrong … the drugs aren’t working’. Lockett died 43 minutes after the injection of the first drug.

Drug protocols

The drug sequence used in Lockett’s execution, and a number of executions since, is not the conventional protocol. The evolution of Oklahoma’s protocol highlights the problems faced across the US. The standard three-drug protocol adopted by the majority of states was previously used in Oklahoma, namely:

  1. Sodium thiopental, a barbiturate sedative that induces coma-like unconsciousness in high doses;
  2. A paralytic agent, usually pancuronium bromide, which induces paralysis and stops respiration; and
  3. Potassium chloride, which induces cardiac arrest.

The US Supreme Court case of Baze v Rees 553 U.S. 35 affirmed the legality of this three-drug protocol. Practical obstacles soon emerged, however, as abolitionist pressure on pharmaceutical companies producing sodium thiopental for the purposes of capital punishment in the US, or foreign companies exporting to the US, caused the stream of sodium thiopental to dry up. This prompted its replacement with pentobarbital, which, again following abolitionist pressure on the pharmaceutical industry, became unavailable.

Oklahoma thus adopted the three-drug protocol used in the execution of Clayton Lockett, which involves the use of midazolam as the sole anesthetic in place of pentobarbital or sodium thiopental. The constitutionality of the use midazolam was challenged last year in the US Supreme Court in the case of Glossip v Gross, where prisoners argued that the use of midazolam amounted to cruel and unusual punishment, contrary to the Eighth Amendment to the American Constitution.

Glossip v Gross 576 U.S. (2015)

There were four original petitioners in this case, which reduced to three when one petitioner, Charles Warner, was executed using the drug protocol the constitutionality of which he sought to challenge. The Court ruled against the petitioners by a margin of 5-4, Justice Alito giving the majority judgment. He set out two requirements from Baze v Rees that the petitioners would have to satisfy in order for the Court to declare the midazolam drug protocol unconstitutional, namely that the procedure must give rise to a risk of pain that is substantial when compared to known and available alternatives. The decision of the Court in relation to these two requirements is unsatisfactory.

i) Substantial risk of pain

The Court rejected the contention of the prisoners that midazolam had a ‘ceiling effect’. This refers to the evidence that there is a point at which an increase in dosage would have no effect on the ability of midazolam to induce and maintain consciousness, the role it must perform if it is to prevent the excruciating pain that would otherwise result from the latter two drugs. In rejecting the substantial evidence in support of the ceiling effect, the majority was instead persuaded by the expert testimony of Dr Evans at the District Court hearing, who said that the 500-miligram dosage administered to Lockett would have made unconsciousness and insensitivity to pain a virtual certainty.

However, as Justice Sotomayor says in her dissent, ‘just because a purported expert says something does not make it so’. This certainly applies to this case, I would argue. The majority was too critical of the ceiling effect evidence, merely adopting a position of deference to one expert witness, Dr Evans, because the District Court had done so. Justice Sotomayor, in her dissent, also helpfully sets out the significant potential deficiencies in Dr Evans testimony, for example his reliance on general statements from the online pharmaceutical encyclopaedia drugs.com and the midazolam manufacturer rather than academic literature, which makes the deference troubling.

The majority did not give sufficient consideration to the repeated and substantiated assertions of one of the expert witnesses for the prisoners, Dr Lubarsky, that midazolam cannot be used to adequately maintain anaesthesia. Though this is a matter of science, when confronted with a petition relating to a matter of life, death and torture, as argued by the prisoners here, the Supreme Court justices should have been far more receptive to scientific evidence and should have made their own decisions.

The prisoners also argued that midazolam is far more likely to pose a substantial risk of harm as a result of the lack of consensus as to its efficacy among states, with the three-drug protocol in this case only in use in four states at the time of the hearing. The majority, in rejecting this argument, highlighted that to accept such an argument would not only hamper the adoption of new methods of execution, but would also prevent states from responding to the changes in availability of lethal injection drugs.

While this argument is persuasive, it must be noted that simply because a criticism would undermine the ability to adopt new methods of execution, that does not devoid the criticism of its legitimacy. Also, the majority misses the issue underlying the argument, namely that where a drug protocol is adopted hastily in response to the changing availability of lethal injection drugs, there is a risk of insufficient scientific testing and understanding of the drug’s efficacy. The lack of FDA approval of midazolam and the botched executions that have resulted from its use, including that of Clayton Lockett, lend weight to the argument of Justice Sotomayor that the hasty adoption of midazolam amounts to ‘human experimentation’.

The majority pointed to the 12 executions prior to the decision other than Lockett’s that used the procedure, and the lack of ‘significant problems’ involved, as Justice Alito put it, to show that there is no substantial risk of harm. The word ‘substantial’ is telling, however. The second drug administered, the paralytic, greatly decreases the prisoner’s ability to outwardly express pain. Thus, any indication that the prisoner is in pain must be taken seriously. Justice Sotomayor refers to evidence of blinking and other movements to show that there is evidence of a substantial risk of harm resulting from the use of midazolam.

I hold the opinion, shared by Justice Sotomayor, that the majority in this case was too dismissive of the scientific evidence in relation to the risk of harm, instead viewing the evidence selectively so as to consider only that which supports their broader views on capital punishment.

ii) Known and available alternative

The second of the requirements the prisoners had to prove, according to Justice Alito, was that there was an alternative drug that made the risk of harm from midazolam unacceptable. Though the prisoners pointed to the more tried and tested drugs sodium thiopental and pentobarbital, the Court rejected that this satisfied this test, as neither drug was available to the Oklahoma Department of Corrections.

The Court’s insistence on this second requirement is, however, both legally and logically flawed. Justice Sotomayor sets out in her dissent that the case of Baze v Rees, which this requirement purportedly stems from, does not make this requirement compulsory for all Eight Amendment method of execution claims. The petitioners in Baze v Rees specifically argued that the challenged drug protocol was unconstitutional because there was a known and available alternative posing less risk. This is very different to Glossip v Gross, and its elevation to a stringent rule forming part of the test for Eighth Amendment constitutional challenges creates a dangerous precedent that the prohibition on cruel and unusual punishments is not absolute, but relative.

The majority’s reasoning is also logically flawed. Justice Sotomayor highlights that in ‘re-engineering Baze’, the Court effectively ruled that if the constitution allows for capital punishment, there must be a constitutional means of carrying it out. This sets yet a further dangerous precedent that if a method is the only available method, it must be constitutional. This is clearly absurd. Justice Sotomayor uses the example of a method of execution presenting a 99% chance of excruciating pain. That method is clearly unconstitutional regardless of the lack of alternatives.

Thus the decision in Glossip v Gross prevents methods of execution being judged objectively, and creates the obviously unsatisfactory situation where a method will only be unconstitutional if there is an alternative that prevents a significantly lower risk of pain.

Conclusion

The use of midazolam represents an unsatisfactory response to the lack of availability of more widely used and tested drugs. The reasoning of the majority is seriously flawed, and suggests that the decision was determined according to broader beliefs on capital punishment, rather than the evidence at hand. Even if this is not agreed with, it is undeniable that when lethal injection protocols are adopted expeditiously in response to changing circumstances in the pharmaceutical market that affect the availability of drugs, new protocols and methods of execution should be subjected to the most searching scrutiny to ensure that the death penalty does not amount to cruel and unusual punishment. If this cannot be guaranteed, lethal injection is unconstitutional, and should be abolished.

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Tagged: Constitution, Human Rights, International Law, Prisons, Public Law

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