Alabama’s Lethal Injection Protocol Survives Another Challenge

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Today, the United States Supreme Court denied an Alabama death-row inmate’s request to review the constitutionality of Alabama’s three-drug execution protocol. Tommy Arthur argued that Alabama’s lethal injection cocktail violates the Eighth Amendment’s ban on “cruel and unusual punishment” because the method risks severe and unnecessary pain and suffering. The Court’s refusal to review the protocol almost certainly means that Tommy Arthur, who has been on death row for more than 30 years, will likely be executed soon. It also likely means that defendants who hope to challenge Alabama’s method of execution face a massive uphill battle in future fights.

Since lethal injection became the preferred method of execution in the 1980s, almost all states have used a three-drug cocktail to carry out the execution. The first drug administered would be a large amount of a sedative that’s supposed to knock the inmate unconscious and suppress all sensation. The second drug would be a paralytic, which would stop all muscular-skeletal movements, including the diaphragm. The final drug would cause the heart to stop.

Until recently, the first drug used in the three-drug protocol was either sodium thiopental. The manufacturer discontinued production of that drug, so states turned to pentobarbital. That drug also became unavailable in 2013. The states then turned to midazolam, the drug at the heart of recent Eighth Amendment litigation.

According to experts, midazolam doesn’t have the anesthetic effect of thiopental or pentobarbital. This is important because the second and third drugs administered in the the lethal injection process are extremely painful. Reports describe the pain from these drugs as a searing, burning pain spreading from the injection site throughout the body. Again, they literally stop your breathing and your heart. So, without a strong sedative, an inmate is likely facing an excruciating (and often prolonged) execution.

Executions using midazolam have been awful. Defendants executed with the drug in Oklahoma, Arizona, and Alabama died slowly and, apparently, very painfully when midazolam has been the first drug administered. (Justice Sotomayor’s dissent below details these executions.)

In challenging a method of execution as unconstitutional under the Eighth Amendment, a defendant must show a readily available constitutional alternative. Here, Arthur argued that there was a constitutional alternative to lethal injection in Alabama: the firing squad. The lower federal courts rejected this claim because Alabama law doesn’t specifically provide for death-by-firing-squad. Because Arthur couldn’t prove a constitutional alternative, the court wouldn’t review his claim that the cocktail using midazolam was unconstitutional under the Eighth Amendment.

Justice Sotomayor wrote a scathing dissent from the the Court’s refusal to consider this case. The dissent pointed out that Alabama recently amended its laws to allow for the execution of a defendant by “any constitutional method of execution.” See 15-18-82.1(c). Justice Sotomayor argued that Arthur met his burden of showing a constitutional alternative, even if that alternative wasn’t on the books in Alabama.

The dissent here was largely a critique on the lethal-injection protocol itself and the Court’s refusal to consider how screwed up our Eighth Amendment jurisprudence has become when a defendant can show that a method of execution causes unnecessary (and unconstitutional) pain and suffering, but can still be executed with that method because a State doesn’t have another method of execution on the books.

Read Sotomayor’s dissent here.

Alabama’s Lethal Injection Protocol Survives Another Challenge

Lethal Injection — Glossip v. Gross

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Background

Oklahoma, like most states, uses a three-drug cocktail during its lethal injection procedure. The first drug induces unconsciousness. Until the manufacturer discontinued production, the drug used for this stage was a barbiturate, sodium thiopental or pentobarbital. The second drug is a paralytic that disables all muscular movements. The third drug stops the defendant’s heart.

Due to the manufacturer discontinuing production of the barbiturate used in the first stage of the execution protocol, Oklahoma adopted the used of midazolam, a strong sedative, for the first stage of the execution process. Oklahoma death-row inmates filed a challenge to the use of midazolam under 42 USC § 1983. Specifically, petitioners argued that the use of this drug would violate the Eighth Amendment’s ban on cruel or unusual punishment because this drug will not sufficiently sedate the inmates so they will not feel pain in the execution process.

The district court denied relief on two grounds: (1) the petitioners failed to identify an alternative method of execution that presented a substantially less severe risk of pain; and (2) the petitioners failed to demonstrate the use of midazolam created a risk of severe pain. The Tenth Circuit Court of Appeals affirmed the lower court’s decision.

AFFIRMED.

In rejecting the inmates’ claim that the use of midazolam violates the Eighth Amendment, the Court reached two conclusions: (1) the drug does not create a substantial risk of severe pain; and (2) the petitioners failed to show a “known and reliable” alternative that presents a lower risk of pain.

1. The inmates failed to establish the use of midazolam creates a substantial risk of severe pain.

In Baze v. Rees, 553 U.S. 35 (2008), another case challenging the constitutionality of the three-drug cocktail used in lethal injections, the Court held that in any Eighth Amendment challenges to an execution protocol, a challenger must show the method employed will create the great risk of causing pain. Here, the Court found that inmates completely failed to meet that showing. The Court concluded that ample evidence was presented that midazolam did not create a risk of severe pain necessary to grant the inmate’s request for a permanent injunction.

2. Petitioners failed to identify a “known and available alternative” to the execution methods that would have lower risks of pain

Baze also requires a challenger to show that the risk of harm was substantial in comparison to a known and available alternative method of execution. Here, the Court found the inmates failed to satisfy this requirement of Baze. While the inmates argued that Oklahoma could use sodium thiopental or pentobarbital as the first drug in the three-drug cocktail, the Court rejected this argument because it was all but conceded that these drugs were no longer available to the States.

Dissent — Justice Breyer no longer believes the death penalty is constitutional.

Justice Breyer authored a thoughtful dissent where he calls into question the constitutionality of the death penalty. He focused his criticism on three main points: (1) his belief that the process suffers from “serious unreliability;” (2) that the ultimate penalty is arbitrarily applied; and (3) that the long delays in sentencing and execution undermine the penological purpose of the penalty.

The opinion is available here:

http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf

Lethal Injection — Glossip v. Gross