Supreme Court upholds use of controversial execution drug

“Because capital punishment is constitutional, there must be a constitutional means of carrying it out,” read the beginning of the Court’s 5-4 ruling that the use of a controversial execution drug is not prohibited under the Eight Amendment’s cruel and unusual punishment clause. Midazolam, the drug in question, is a sedative used in the lethal injection process to induce unconsciousness. It is then followed by the administration of a paralytic agent to prevent the muscles from moving, and finally potassium chloride to induce cardiac arrest. This three-drug protocol used for lethal injections has been threatened by shortages of the drug that was, until recently, used to render the prisoner unconscious. The petitioners, four Oklahoma death row inmates, claim midazolam to be unreliable in rendering the victim in a “comalike unconsciousness” and its uses’ potential for extreme pain qualifies as “cruel and unusual punishment” under the Eighth Amendment.
Justice Alito, writing the majority opinion, asserts that the Court ruled against the plaintiffs for two reasons: the first being that to succeed, the prisoners “must establish that the method used creates a demonstrated risk of severe pain and that risk is substantial when compared to known and available alternatives.” The second reason was that in the Court’s opinion, the district court that initially ruled against the plaintiffs “did not commit clear error” in its ruling. “[T]his Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as cruel and unusual punishment,” quoted Alito, adding that the “Constitution does not require the avoidance of all risk of pain”. Alito concluded by claiming that if “the Eighth Amendment demands the elimination of essentially all risk of pain,” it would outlaw the death penalty altogether.
Which is exactly the question that Justice Breyer’s dissenting opinion seeks to address. Breyer writes that the cruel and unusual punishment clause is not applied based on the standards of 1865 but rather the standards “that currently prevail,” asking the Court for a full briefing on the constitutionality of capital punishment.
In a concurring opinion, Justice Scalia let loose on Breyer’s dissent, writing “[i]t is impossible to hold unconstitutional that which the Constitution explicitly contemplates.” Said contemplation appears in the Fifth Amendment, which states that no person shall be held to answer for a capital crime unless indicted by a Grand Jury. Scalia adds that one of the petitioners was in prison when he committed the murder that landed him on death row, poking a hole in Breyer’s argument for life imprisonment (i.e. a dead killer never kills again). In closing, Scalia reminded us that the Framers of the Constitution “disagreed bitterly” on capital punishment and thus left the decision up to the people in the form of juries.
Writing the dissent, Justice Sotomayor claimed the majority made two crucial errors in ruling against the plaintiffs: 1) it deferred to the district court to “credit the scientifically unsupported and implausible testimony of a single expert witness,” and 2) its decision faults the petitioning inmates for “failing to satisfy the wholly novel requirement of proving the availability of an alternative for their own executions.” Sotomayor notes that if the first drug in the execution cocktail is ineffective, the latter two will cause enormous pain, pondering midazolam as the “chemical equivalent of being burned at the stake.”
This morning’s ruling, while sustaining precedent, triggered the Court to discuss a significant moral question that the American people have themselves been debating. Though the science may be shaky (as the Court acknowledges), Justice Scalia writes that the moral argument of the death penalty versus life without parole as appropriate retribution is “far above the judiciary’s pay grade”. Gossip v Gross was as much an argument about the death penalty itself as it was about midazolam being “cruel and unusual”, and will likely cement the Court’s position on capital punishment for years to come.
The Supreme Court’s full opinion can be read here.

Reprinted with permission from The Diurna.