Justices Told That Execution Cocktail Causes Unacceptable Pain, Suffering

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By Lance J. Rogers

April 29 — Oklahoma's controversial lethal injection cocktail violates the constitutional ban on cruel and unusual punishment because the first compound in the three-drug protocol doesn't render a person insensate to the searing pain that occurs when the follow-up drugs are injected, a lawyer for three death row inmates told the U.S. Supreme Court during oral argument April 29.

But Robin C. Konrad, of the Federal Public Defender's Office in Phoenix, came under fire almost immediately from the conservative wing of the court for arguing that the justices should overturn the inmates' sentences because the trial court erred as a matter of fact and of law when it concluded that the three-drug formula was constitutionally tolerable without backing up that conclusion in a coherent way.

"You're asking us to find that the district court was clearly erroneous when it ruled as a matter of fact that the drug eliminates pain, Justice Antonin Scalia said. “Do we usually do that kind of thing?” he asked.

Justice Samuel A. Alito Jr. was even more blunt. “So you are arguing—you want us to reverse a finding of fact of the district court on the ground that it is clearly erroneous. When was the last time we did that?”


Oklahoma Solicitor General Patrick R. Wyrick, Oklahoma City, didn't have an easy time of it either, as he faced skepticism from the court's more liberal wing about the validity of the trial court's finding that a 500-milligram dose of midazolam would render the condemned men in this case unconscious and unable to feel pain.

Justice Elena Kagan specifically targeted the district court's “subsidiary findings” on which it based its conclusions about the efficacy of midazolam.

“One of them nobody thinks is anything other than gobbledygook, and the other two are irrelevant,” she said.

Justice Ruth Bader Ginsburg pointed to an amicus brief filed in support of the inmates that undermines the district court's conclusions.

“What do we do with this brief of the pharmacology professors that state[s], flat out, midazolam cannot induce coma­like unconsciousness?” she asked.

High Stakes

Justice Stephen G. Breyer suggested that there was little evidence to refute the defense expert's testimony that midazolam “is an antianxiety drug, like Xanax.” It can render someone unconscious but that a “major stimuli” like the follow up drugs in the lethal cocktail protocol could jolt the subject into consciousness.

Both Kagan and Justice Sonia Sotomayor expressed deep reservations to Wyrick about the district court's conclusion, on what they characterized as slim scientific evidence that midazolam effectively knocks a subject out throughout the whole procedure.

Suppose we said, we're going to burn the condemned man at the stake and we're going to use an anesthetic of completely unknown properties and unknown effects, Kagan said.

“Maybe you won't feel it, maybe you will. We just can't tell. And—and you think that that would be okay.”

Revised Protocols

Oklahoma's lethal injection program was put on hold in the spring of 2014 following a highly publicized lethal injection that went awry.

According to witnesses, Clayton Lockett writhed in pain and thrashed around on his gurney as officials struggled to reinsert an intravenous line that became dislodged.

Officials in Oklahoma later persuaded a federal district court and the U.S. Court of Appeals for the Tenth Circuit that they had overhauled their death-chamber procedures so that the executions didn't pose a serious risk of inflicting unconstitutional pain and suffering (Warner v. Gross, 776 F.3d 721 (10th Cir. 2015).

Under the new protocol, the state uses five times the dose of midazolam—500 milligrams—that was used in the botched Lockett execution. The revised lethal injection protocol also calls for the state to establish both primary and “backup IV access sites” and to monitor the offender's “level of consciousness” throughout the procedure.

It has already used the new protocol to execute a fourth inmate who lost a stay of execution one week before the Supreme Court granted certiorari in this case.

Lack of Good Alternatives

Part of the debate swirled around the possible alternatives to midazolam and the reason why states are using that particular drug.

In Baze v. Rees, 553 U.S. 35 (2008), a plurality of the court upheld a three-drug protocol that involved injecting the barbiturate sodium thiopental to render the inmate comatose before introducing drugs that cause paralysis and cardiac arrest.

Oklahoma, however, began using midazolam instead of sodium thiopental because companies stopped making the barbiturate available to prison officials.

Three of the justices—Scalia, Alito and Justice Anthony M. Kennedy—asked Konrad to concede that it was the anti-death penalty forces that put Oklahoma in this position by pressuring manufacturers not to make the traditional barbiturate in the first place.

“What bearing, if any, should we put on the fact that there is a method, but that it's not available because of” opposition to the death penalty? Kennedy asked.

Guerilla Warfare

When Konrad balked, Scalia pressed her to answer, saying he would be inclined to find Oklahoma's protocol intolerable if there was a good alternative out there, but that he was having difficulty with Konrad's argument that midazolam “isn't 100 percent” acceptable because it was “the abolitionist movement” that made sodium thiopental so scarce.

Alito put an even finer point on it, asking, “[I]s it appropriate for the judiciary to countenance what amounts to a guerilla war against the death penalty?”

That's not relevant, Konrad replied.

But Chief Justice John G. Roberts Jr. suggested that this line of inquiry was relevant. If there's no acceptable alternative, Roberts said, you're telling us these men can't be executed.

In Baze, the court held that a state may violate the Eighth Amendment if it refuses to adopt an alternative method that significantly reduces the risk of serious pain. One of the issues briefed by both sides here was whether a condemned prisoner must prove the availability of an alternative drug protocol in order to prevail in an Eighth Amendment challenge like this one.

No Way to Avoid Unacceptable Pain?

Sotomayor posited that there are alternatives, like the gas chamber and firing squads.

“[Y]ou're not suggesting that those other methods are preferable to the method in this case, are you?” Roberts asked.

No, Konrad said.

Suppose there is no way to execute a person that does not cause unacceptable pain, Breyer wondered. Would that show that the death penalty itself is inconsistent with the Eighth Amendment?

To contact the reporter on this story: Lance J. Rogers in Washington at lrogers@bna.com

To contact the editor responsible for this story: C. Reilly Larson at rlarson@bna.com

Transcript of oral argument at http://www.supremecourt.gov/oral_arguments/argument_ transcripts/14-7955_1b72.pdf.

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