The Supreme Court recently heard arguments in a case brought by Oklahoma death row inmates attacking the use of a particular drug, midazolam, in the state’s three drug lethal injection system. The lawsuit claims that the use of midazolam constitutes cruel and unusual punishment. If that argument prevails, it will mark the first time that the Court has held that a particular method of execution is unconstitutional. Lethal injection authority Deborah Denno discusses the case in this report.
Professor Denno notes that this case concerns the narrow question whether midazolam is unconstitutional as part of Oklahoma’s three-drug execution protocol. The Court has considered the drug previously in a Kentucky case within the past seven years. The Oklahoma protocol specifies the giving of a sedative (midazolam) to make the inmate essentially comatose. The second drug, rocuronium bromide or vecuronium bromide, is a paralytic agent, and the third drug, potassium chloride, stops the heart. The Court has made clear that the sedation of the inmate is critical to an execution that does not offend the prohibition of cruel and unusual punishment.
The reports of botched executions in recent years have focused more attention on the means of carrying out the execution procedure. Professor Denno points out that there were four botched executions at the start of 2014, and especially the case of Clayton Lockett in Oklahoma. He was injected with midazolam but didn’t die. The execution was called off, but Lockett died afterward. That execution got a great deal of attention, including some from President Obama.
Professor Denno says that the key to the Oklahoma execution protocol is the effectiveness of the first drug, midazolam. The case is about one sedative in one state. Professor Denno says it is hard for her to predict what the Court will do. The questioning during oral argument indicated “a split among the justices in predictable ways.” This will probably be another 5-4 case where Justice Kennedy will be the deciding vote.
During argument, Justices Alito and Scalia seemed to feel that the case was an attack on the death penalty in general and not merely a question about the drug used in Oklahoma. Justice Alito characterized the case as part of a “guerilla war” against the death penalty. But all that aside, Professor Denno notes, this is a very narrow case about a particular drug, and the Court does not need to decide any larger issues to dispose of the case. Of course, Professor Denno adds, it is not the fault of death penalty opponents that Europeans do not want to be part of America’s death penalty procedures. And the medical community has for years opposed having doctors take part in executions.
Deborah W. Denno is the Arthur A. McGivney Professor of Law at the Fordham Law School, New York City. Prior to joining the Fordham Law faculty in 1991, Professor Denno clerked for Anthony J. Scirica, now Chief Judge of the Third Circuit Court of Appeals, and worked as an associate at Simpson, Thacher and Bartlett. At Fordham Law School, she primarily teaches criminal law, criminal procedure, torts, and various seminars on advanced criminal law topics including rape and social science evidence. The Legal Broadcast Network is a featured network of the Sequence Media Group.