The Latest Lethal-Injection Challenge May Depend On The Answer To One Question -- And It's Not What You Think

Does a person sentenced to death have the right to be unconscious at the time of his death? No, argues columnist Tamara Tabo.

Much of the attention at the U.S. Supreme Court this week focused on matters of love and life, as the Justices heard oral arguments in Obergefell v. Hodges, the same-sex marriage case. The next day, however, the Court turned toward a set of more somber questions. In Glossip v. Gross, the Court considers a challenge to Oklahoma’s death penalty procedure. The outcome of the case may turn on a single question uttered in oral arguments this week.

In early 2014, Oklahoma prison officials began using a drug called midazolam as the first in the sequence of three drugs administered in the standard lethal injection protocol. In the past, inmates would receive a barbiturate that would anesthetize them before officials administered pancuronium bromide or vercuronium bromide, a paralytic agent that would stop the inmate’s breathing, and then potassium chloride, which would ultimately stop the inmate’s heart. Oklahoma, along with other states performing executions by lethal injection, began experimenting with a new drug cocktail because a European Union embargo has made purchasing the barbiturates sodium thiopental (and, to a lesser extent, pentobarbital) virtually impossible.

However, the petitioners in Glossip contend that midazolam is not an acceptable substitute for sodium thiopental. They point to recent executions using midazolam that went awry such as the death of Ohio’s Dennis McGuire, Arizona’s Joseph Wood and Oklahoma’s Clayton Lockett. Because midazolam is not an effective anesthetic, the inmates argue, lethal injection using midazolam violates the Eighth Amendment’s ban on cruel and unusual punishment.

There are solid reasons to reject midazolam as a substitute for sodium thiopental in the lethal injection protocol. Midazolam, sometimes sold under the trade name Versed, is a benzodiazepene like Xanax or Valium. It operates differently than the barbiturates previously used to render inmates unconscious. The State of Oklahoma insists that the risk that a prisoner would perceive pain after receiving a proper dose of midazolam is negligible. Other experts disagree. Sixteen pharmacology professors filed an amicus brief in Glossip stating, “From a pharmacological perspective [ . . . ] midazolam is not appropriate for its intended purpose. There is overwhelming scientific consensus, including among pharmacologists, that midazolam is incapable of inducing a ‘deep, comalike unconsciousness,’” and “even an excessive dose of midazolam will not result in unconsciousness.”

Even if there is consensus that midazolam does not, will not, and cannot result in unconsciousness, does that mean that the Court must find its use in the lethal injection protocol unconstitutional? Does a person sentenced to death have the right to be unconscious at the time of his death? No. States need not, for example, provide anesthesia ahead of a trip to the gallows. However, if midazolam does not accomplish the goal intended for the first drug in the three-drug sequence, then the protocol must be evaluated according to whether the second and third drugs — not the traditional protocol — lead to unacceptable death conditions.

Would pancuronium bromide or vercuronium chloride and potassium chloride used by themselves violate the Eighth Amendment’s prohibition on cruel and unusual punishment? Probably so.

Baze v. Rees

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In 2008, in the case of Baze v. Rees, the Court upheld the constitutionality of the traditional three-drug lethal injection protocol. Chief Justice John Roberts wrote in the plurality opinion in Baze, “It is uncontested that, failing a proper dose of sodium thiopental to render the prisoner unconscious, there is substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride.”

Since the 2008 petitioners failed to show that state’s method of administering sodium thiopental was unacceptably unreliable, the Court upheld the three-drug protocol at issue in Baze. But the protocol before the Court now in Glossip replaces sodium thiopental with the controversial midazolam. Unless the state of Oklahoma can convince enough justices that midazolam is functionally equivalent to sodium thiopental, the Court could find Oklahoma’s protocol unacceptable.

The four liberal justices currently on the Court, generally thought to range from deeply opposed to highly skeptical of capital punishment, are pretty sure bets for opposing Oklahoma’s practices in Glossip. Justices Scalia and Thomas agreed with the outcome in Baze, but their definition of “cruel and unusual punishment” probably demands much crueler and more unusual punishment than what’s at issue in Glossip. ustices Kennedy and Alito joined Chief Justice Roberts’s earlier Baze opinion, and it’s not inconceivable that they could be persuaded to rule against Oklahoma’s use of midazolam in this case.

Guerrilla Warfare?

Justice Alito, however, is much less likely to swing over to join his liberal colleagues than either Justice Kennedy or the Chief. In a concurrence in Baze, Justice Alito wrote that “public policy on the death penalty, an issue that stirs deep emotions, cannot be dictated by the testimony of an expert or two or by judicial findings of fact based on such testimony.” Even in 2008, he was frustrated by delays in carrying out the death penalty. Alito warned that if the Supreme Court saw fit to reexamine the constitutionality of the death penalty as a whole, it should do so directly. He wrote, “The Court should not produce a de facto ban on capital punishment by adopting method-of-execution rules that lead to litigation gridlock.”

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The challenge in Glossip may be just the sort of fact-bound inquiry that he wants to avoid. Justice Alito’s soliloquy in oral arguments this week points in that direction:

Now, this Court has held that the death penalty is constitutional. It’s controversial as a constitutional matter. It certainly is controversial as a policy matter. Those who oppose the death penalty are free to try to persuade legislatures to abolish the death penalty. Some of those efforts have been successful. They’re free to ask this Court to overrule the death penalty.

But until that occurs, is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty which consists of efforts to make it impossible for the States to obtain drugs that could be used to carry out capital punishment with little, if any, pain? And so the States are reduced to using drugs like this one which give rise to disputes about whether, in fact, every possibility of pain is eliminated.

Now, what is your response to that?

If the Court can fashion a sufficiently narrow ruling that acknowledges the particular inadequacy of midazolam without conceding ground on capital punishment generally, so much the better. Whether a majority of the Court is willing to even try to thread that needle — no pun intended –may come down to how satisfied Justices are with the answer to Justice Alito’s question.


Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at tabo.atl@gmail.com.