Facts of the Case
On April 29, 2014, Oklahoma executed Clayton Lockett using a three-drug lethal injection procedure. The procedure went poorly; Lockett awoke after the injection of the drugs that were supposed to render him unconscious and did not die until about 40 minutes later. Oklahoma suspended all subsequent executions until the incident could be investigated and subsequently adopted a new protocol that placed a higher emphasis on making sure the injection was done properly. The new protocol also allowed for four alternative drug combinations, one of which used midazolam as the initial drug, as did the protocol used in the Lockett execution.
Charles Warner and 20 other death row inmates sued various state officials and argued that the use of midazolam as the initial drug in the execution protocol violated the Eighth Amendment's prohibition against cruel and unusual punishment. Warner and three other plaintiffs also moved for a preliminary injunction to prevent Oklahoma from moving forward with their executions. A federal district court denied the injunction and held that the plaintiffs had not provided sufficient evidence that they would prevail on the merits of their claims and that they had failed to identify a "known and available" alternative to the drug in question. The U.S. Court of Appeals for the Tenth Circuit affirmed.
On January 15, 2015, the Supreme Court declined to grant the petition for a writ of certiorari, and Charles Warner was subsequently executed. Richard E. Glossip and the other two death row inmates petitioned the Court again.
Does Oklahoma's use of midazolam as the initial drug in the execution protocol, the same initial drug used in Clayton Lockett's execution, violate the Eighth Amendment's prohibition against cruel and unusual punishment?
No. Justice Samuel A. Alito, Jr. delivered the opinion of the 5-4 majority. The Court held that there was insufficient evidence that the use of midazolam as the initial drug in the execution protocol entailed a substantial risk of severe pain, compared to known and available alternatives, in violation of the Eighth Amendment. Because capital punishment has been held to be constitutional and some risk of pain is inherent in execution, the Eighth Amendment does not require that a constitutional method of execution be free of any risk of pain. Instead, a successful Eighth Amendment method-of-execution claim must identify a reasonable alternative that presents a significantly lower risk of pain, which the petitioners in this case were unable to do. Because the district court is entitled to a high degree of deference in its determination, the petitioners would have to prove that the district court’s factual findings were clearly erroneous in order for the Court to overturn the ruling. In this case, the medical testimony supports the district court’s determination that the use of midazolam did not create a substantial risk of severe pain, particularly in light of the safeguards the state imposed on the process.
In his concurring opinion, Justice Antonin Scalia wrote that the Constitution expressly contemplates the death penalty when it considers the possibility that someone may be “deprived of life,” and therefore capital punishment cannot be unconstitutional. The arguments that it is arbitrary and unreliable, and therefore cruel, deal with the concerns about conviction, not the punishment itself, and are dangers inherent in the jury trial process. The decision of whether to impose the death penalty encompasses the type of moral calculus that should remain in the hands of the jury, as the Constitution provides. Justice Clarence Thomas joined in the concurrence. Justice Thomas also wrote a separate concurrence in which he argued that the studies cited in support of the arbitrariness of the imposition of the death penalty are themselves unreliable because they require that the moral reasons to execute someone be reduced to a metric by academics who were not present at trial. Justice Scalia joined in the concurring opinion.
Justice Stephen G. Breyer wrote a dissent in which he argued that the constitutionality of a punishment must be evaluated based on currently prevailing social and legal standards; therefore, the death penalty is no longer constitutional. Justice Breyer pointed to studies that show that the exoneration rate is disproportionately high with capital crimes, which reflects both cases in which the defendant was actually innocent and cases in which there was procedural error; therefore, the death penalty is not reliably applied to cases in which the defendant has been properly convicted of crimes that society harshly condemns. Additionally, studies have shown that factors other than the egregiousness of the crime—such as the races and genders of the defendant and the victim, the location of the crime, and political pressures—influence the imposition of the death penalty, and such arbitrariness results in the punishment being unconstitutionally cruel. Because the imposition of the death penalty requires additional procedural safeguards, there are often long delays between sentencing and execution, if the execution happens at all, which is cruel in and of itself and also divorces the punishment from its punitive purposes of deterrence and retribution. Justice Breyer also argued that the nation has consistently been moving away from the use of the death penalty, to the point that it is used so rarely as to be considered “unusual” for the purpose of the Eighth Amendment. Justice Ruth Bader Ginsburg joined in the dissent. In her separate dissent, Justice Sonia Sotomayor wrote that the district court erred in holding that the use of midazolam did not create a substantial risk of severe pain. Instead, the scientific evidence supports the view that, while midazolam can induce unconsciousness, it is not sufficient to maintain unconsciousness through the effects of the rest of the execution cocktail. Because the petitioners sufficiently demonstrated that the risk of severe pain was substantial and that the state’s safeguards do not appropriately mitigate that risk, the use of midazolam violates the Eighth Amendment’s prohibition against cruel and unusual punishment. Justice Sotomayor also argued that there is no requirement that petitioners for relief under the Eighth Amendment provide a reasonable alternative, because a cruel method of execution does not become constitutional simply due to a lack of alternatives. Justice Breyer, Justice Ginsburg, and Justice Elena Kagan joined in the dissent.
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