The Supreme Court just guaranteed that America will continue its long-held tradition of botched executions. Today’s decision in Glossip v Gross, upholding the use of midazolam in lethal injections, is in keeping with the court’s history of tolerating inhumane execution methods. As Justice Sotomayor wrote in her dissent, “under the court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.”
In this decision, the court did what it has always done in the past, bending over backwards to reconcile a technology of execution with the 8th Amendment’s ban on “cruel and unusual punishment.” And, as in the past, the court’s decision will be extremely damaging to those we put to death as well to our own moral values and legal commitments.
“Under the court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death or actually burned at the stake.” — Justice Sonia Sotomayor
Almost 150 years ago the Court decided its first methods of execution case, a challenge to Utah’s use of the firing squad. It found “that the punishment of shooting as a mode of executing the death penalty for the crime of murder in the first degree” was not cruel and unusual within the meaning of the 8th Amendment.
Several months after the court’s embrace of the firing squad, Utah’s execution of Wallace Wilkerson, the appellant in the case, was severely botched. The executioner’s “bullets missed Wilkerson’s heart, one of them shattering his arm and the rest hitting his torso.” Officials initially thought that they would have to shoot him again, but he bled out shortly after he was shot.
A similar sequence—judicial approval and subsequent botched execution—occurred a decade after the Wilkerson execution when the court next heard an 8th Amendment challenge to a method of execution, this time the electric chair. This method was challenged by William Kemmler, an alcoholic produce peddler in Buffalo, New York who had been convicted of killing his common law wife by repeatedly hitting her with a hatchet while in a drunken rage.
One year prior to his conviction, New York replaced hanging with electrocution. At the time, the electric chair’s proponents called it “powerful,” “rapid” and “humane.” Nonetheless, Kemmler claimed that death by electrocution would be cruel.
The Supreme Court did not agree. It said that “Punishments are cruel when they involve torture or a lingering death…something inhuman and barbarous—something more than the mere extinguishment of life.” Comparing electrocution with “burning at the stake, crucifixion, breaking on the wheel,” the court upheld its use because the New York legislature adopted it “in the effort to devise a … humane method” of putting people to death.
Like Wilkerson, Kemmler’s supposedly humane execution was badly botched. He received 1000 volts of electricity, but did not die. He was then given a second time jolt of electricity, this time 2,000 volts. The result was a gory mess. Blood vessels under the skin ruptured and bled. The hair under the electrode on the head and the flesh around the electrode at the base of the spine was singed. The smell of burning flesh filled the room. A reporter who witnessed it called Kemmler’s execution “an awful spectacle, far worse than hanging.” Another constitutionally sanctioned execution became a gruesome spectacle.
Kemmler’s supposedly humane execution was badly botched. He received 1000 volts of electricity, but did not die. He was then given a second time jolt of electricity, this time 2,000 volts. The result was a gory mess.
It would take approximately 120 years after Kemmler’s case for the Supreme Court, in 2008, to entertain another challenge to a method of execution, this time lethal injection. Once thought to be a panacea in the death penalty system, lethal injection seemed to offer the ultimate assurance that executions could be carried out without cruelty. It gave the death penalty the appearance of a medical procedure with the death chamber resembling a hospital operating room.
So powerful was its appeal that even ardent critics of capital punishment, like the French writer Albert Camus, urged lethal injection’s adoption, while death penalty supporters, like Supreme Court Justice Antonin Scalia, embraced it saying, “How enviable a quiet death by lethal injection…” Starting in the late 1970s and early 1980s, lethal injection became the method of choice in U.S. executions, with 86 percent of executions from 1976 to January 2014 being carried out by that method. Lethal injection assumed its hegemonic status because it was thought able to deliver death in a safe, reliable and humane manner.
That claim was put to the test when, in Baze v Rees, the Supreme Court heard a challenge to Kentucky’s use of the then popular three drug cocktail. As law professor Deborah Denno noted, “The Baze decision broke decades of silence from the Supreme Court regarding state execution methods.” The court held that a method of execution violates the Eighth Amendment only if there is “a substantial and objectively intolerable risk of serious harm” to the inmate.
Despite the fact that more lethal injections have been botched than any other modern execution technology, Chief Justice Roberts, speaking for a plurality not a majority of the court, ruled that while “an execution method may result in pain, either by accident or as an inescapable consequence of death, (that) does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”
The Baze plurality said that the Constitution only required the states to adopt an alternative to a challenged method of execution if that method would be feasible, could be readily implemented and would significantly reduce the risk of serious pain during the procedure. Today’s court decision extended Baze, treating it as if it required those who challenge methods of execution to identify such an alternative approach.
Chief Justice Roberts, speaking for a plurality not a majority of the court, ruled that while “an execution method may result in pain, either by accident or as an inescapable consequence of death, (that) does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.”
No matter how one reads Baze, that case did not settle the controversy over lethal injection. Nor will what the court did today settle it. Between 2008 and now, the consensus that lethal injection is safe, reliable, and humane has fallen apart.
Shortages of sodium thiopental caused by the refusal of European manufacturers to supply it for use in lethal injections have left states scrambling to find which drug, or drug combination, would work most efficiently. Thus, as Jeffrey Stern recently reported in The Atlantic, “South Dakota and Nebraska approached Kayem Pharmaceuticals in India, which sold each state sodium thiopental before halting U.S. sales in April 2011. In Arkansas, corrections officials obtained sodium thiopental from British distributors and then shared it for free with Mississippi, Oklahoma, and Tennessee. But the states soon ran afoul of federal regulators for violating trade restrictions. …Georgia purchased sodium thiopental from Dream Pharma, a British distributor operating out of the back of a driving school in London.”
As difficulties in obtaining sodium thiopental mounted, some states started to use massive single doses of pentobarbital to carry out executions. Trying a different approach, one state, Ohio, turned to midazolam first as part of a two drug protocol and then used it as the first drug in a revised three drug protocol. It did so even though midazolam is not used in standard medical procedures to render patients unconscious. Other states Oklahoma, Arizona and Florida, followed Ohio in using it with two other drugs.
However, midazolam was quickly implicated in a series of botched executions, namely those of Dennis McQuire in Ohio, Clayton Lockett in Oklahoma and Joseph Wood in Arizona. In the McGuire execution it left him gasping for air for some 25 minutes. In Lockett’s gruesome execution, after being given midazolam, he woke up yelling, “The drugs aren’t working.” Less than four months later, Wood was given a lethal injection cocktail that included 750 mg of midazolam—much higher than the dosage Lockett received. Nonetheless, it took nearly two hours for Wood to die (making this the longest execution in our recent history), during which time he was, as one witness put it, like “a fish on shore gulping for air.”
Disregarding these problems, Glossip v. Gross continues the court’s benign neglect of methods of execution. Like the court’s earlier decisions, this one may have provided a reprieve for a particular method of execution. But, it will neither quell the growing controversy surrounding lethal injection nor will it quiet the growing unease that Americans feel about the death penalty.