On The Front Lines
Despite Evidence of Incompetence and History of Botched Executions, A Divided U.S. Supreme Court Upholds Use of Controversial Lethal Injections
Documents
Click here to read the United States Supreme Court opinion
Click here to read The Rutherford Institute's amicus brief in Glossip, et al. v. Gross, et al.
WASHINGTON, DC — In a 5-4 decision in Glossip v. Gross, a divided U.S. Supreme Court has upheld the use of a controversial drug as part of the government’s lethal injection protocols for death row executions. Citing the Constitution’s ban on cruel and unusual punishment, death row inmates had challenged the State of Oklahoma’s plan to use midazolam, an anti-anxiety drug that experts indicate would not create the deep coma needed to prevent inmates from awakening and avoid excruciating pain in death penalty executions. In justifying its ruling, the Court declared that the inmates did not show that an alternative method of execution entails a lesser risk of pain.
Noting that botched executions have become a hallmark of many state and federal executions, The Rutherford Institute had asked that the Court declare unconstitutional those laws and policies which allow government officials to keep lethal injection protocols for death row executions shrouded in secrecy, thereby giving rise to torturous executions. The Rutherford Institute is a vocal advocate for a nationwide moratorium on the death penalty, which has been shown to be riddled by racial prejudice, economic inequality, outright corruption, and incompetence.
“The manner in which capital punishment is meted out in this country is nothing less than a travesty of justice,” stated constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “We must hold our government accountable, especially when it comes to the state executing citizens. If we are going to allow the government to kill us, then we certainly need to know all the facts beforehand. Clearly, we are in need of a nationwide moratorium on executions until these matters are sorted out and opened up to public review.”
Until 2014, Oklahoma, like several other states carrying out executions by lethal injection, employed a three-drug protocol that first involved the administration of a strong barbiturate to induce a deep, comalike state of unconsciousness that prevents the person being executed from feeling pain. The second and third drugs cause paralysis (stopping breathing) and stop the heart respectively; by themselves, administration of the second and third drug would cause the person to feel agonizing pain akin to having liquid fire coursing through his or her veins. Therefore, the effectiveness of the first drug is crucial in assuring that the execution does not constitute cruel and unusual punishment in violation of the Eighth Amendment. When the accepted strong barbiturates became unavailable, Oklahoma and other states adopted a protocol that used midazolam, an anti-anxiety drug that experts indicate would not create the deep coma needed to avoid excruciating pain during the administration of the second two drugs during an execution.
Indeed, when Oklahoma first used midazolam during an execution in April 2014, the prisoner awoke during the administration of the second two drugs, writhed in pain and called out with intelligible thoughts. Based on this experience and others involving the use of midazolam as part of a lethal injection protocol, three Oklahoma death row inmates brought an action in federal court to prevent use of the protocol, arguing that it creates an objectively intolerable risk that prisoners will experience excruciating pain during an execution. Both a federal district court and appeals court rejected the claims, and the Supreme Court upheld the lower courts, ruling that the inmates “failed to identify a known and available alternative method of execution that entails a lesser risk of pain.”
Affiliate attorneys Anand Agneshwar and Grace K. Chang of Arnold & Porter LLP assisted The Rutherford Institute in advancing the arguments in the amicus brief before the U.S. Supreme Court.
Case History
