December 9, 2015
Administration of the death penalty via lethal injection has come under intense scrutiny as to both its effectiveness and constitutionality. This scrutiny has become highly visible by recent events in Oklahoma.
Lethal injection typically involves the administration of three drugs in sequence. First is sodium thiopental (an anesthetic), the second is pancuronium bromide (a paralytic agent), and the third is potassium chloride, which stops the heart and ultimately causes death.
However, in recent years sodium thiopental has become difficult to obtain in the U.S. The only FDA approved manufacturer of the drug in the United States stopped making the drug about five years ago. States then turned to pharmaceutical companies in Europe for the drug, but due to the European Union’s opposition to capital punishment, the EU blocked companies from selling sodium thiopental to the U.S. for execution purposes. This export ban, started in 2011, has purposefully made execution via lethal injection more difficult to perform in the U.S.
In response to the reduced availability of sodium thiopental, Oklahoma, along with other states, chose a new drug mixture for lethal injection. Oklahoma settled on the use of midazolam for its anesthetic as a substitute for sodium thiopental. Midazolam has been criticized as not being as effective of an anesthetic as sodium thiopental. Furthermore, its use in the lethal injection protocol is untested.
In April of last year, Oklahoma attempted to execute Clayton Lockett by lethal injection using the new midazolam drug mixture. The execution went horribly awry. Lockett was administered the drug cocktail, but the execution was halted after about 20 minutes. Instead of peacefully losing consciousness and then dying as intended, Lockett went into and out of consciousness. He twitched and convulsed and spoke out loud that “something’s wrong”. Not long after the execution was stopped, he died of a heart attack.
The use of midazolam was widely suspected to be the cause of the botched execution. In addition to Lockett, other executions in Arizona and Ohio, where midazolam was also used, had similar problems being carried out effectively. The concern is that the condemned may not be sufficiently unconscious and thus could feel the pain when the potassium chloride stops the heart and that such a painful execution would violate the 8th Amendment of the U.S. Constitution. The efficacy and constitutionality of using midazolam in performing lethal injections had now become questionable.
After Lockett’s execution, the constitutional question of midazolam was appealed to the U.S. Supreme Court by Oklahoma death row inmate Richard Glossip. In Glossip v. Gross , 135 S.Ct. 2726 (2015), Glossip argued the use of the midazolam drug cocktail caused an unacceptable risk of severe pain and thus violated the 8th Amendment. Oklahoma argued that it had tweaked its cocktail to include a larger dose of midazolam (500mg, much larger than the 100mg given to Lockett) and that Lockett’s botched execution may have been caused by a problem with the IV, not midazolam. The court also noted that similar problematic executions in Ohio and Arizona were performed using smaller doses of midazolam, and were thus more risky than the new high dosage cocktail Oklahoma would use in the future.
In light of these and other factors, the Court held that Glossip failed to establish that any risk of harm arising from the state’s use of midazolam was substantial when compared to a known and available method of execution and that the Western District of Oklahoma did not commit clear error in finding that midazolam was likely to render an inmate unable to feel pain. The decision came down along ideological lines, with the four more liberal justices (Sotomayor, Breyer, Kagan and Ginsberg) dissenting.
It is noteworthy that while the Glossip case was pending, a new possible method of execution has become law in Oklahoma. Oklahoma recently passed a bill to amend its death penalty statute to include a new alternative for execution. The bill, 2015 Okla. Sess. Law Serv. Ch. 75 (H.B. 1879), now codified at OK ST T. 22 § 1014, allows for execution to be carried out by nitrogen hypoxia, if lethal injection is “held unconstitutional by an appellate court of competent jurisdiction or is otherwise unavailable.”
The speed of passage of this bill is a direct response to the strong support for the death penalty in Oklahoma. The bill was passed as a contingency to the Glossip case. Had the Supreme Court ruled the other way, Glossip very likely would have been the first person ever to be executed by nitrogen gas.
Indeed, there is still a small chance that Glossip may be executed by nitrogen. Currently, Glossip’s execution, along with all other executions in Oklahoma, is on hold until at least 2016. The hold was prompted by government officials receiving the wrong drug to perform the execution. (It is unclear which drug of the three-part cocktail the state mistakenly received.) If Oklahoma cannot locate the “proper” drugs for lethal injection, then presumably the new law’s contingency will become effective and the use of nitrogen will go forward.
That Glossip’s execution is currently being stayed because Oklahoma still does not have possession of the proper drug cocktail, even after the lengthy appellate process and the case having been heard by the Supreme Court, is a salient reminder that the pressure put on states, created by limited drug availability, is still very much ongoing.