Supreme court asks if execution drugs are like being 'burned alive at the stake'

http://www.theguardian.com/world/2015/apr/29/midazolam-supreme-court-glossip-v-gross-burned-alive

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The prospect of death row inmates being “burned alive at the stake from inside” in the absence of effective anesthesia was invoked at the US supreme court on Wednesday as the justices wrestled with the nationwide crisis caused by the European-led boycott of lethal injection drugs.

Anger spilled from the nine justices from both sides of the court’s ideological divide. The more conservative wing vented their disapproval at those they called “abolitionists” who they accused of trying to overturn the death penalty by stealth, while the more liberal judges attacked states such as Oklahoma for using a new drug protocol that had left prisoners “writhing in pain” in executions that took up to two hours to complete.

The fraught oral argument, the first hearing of its sort at the supreme court in seven years, encapsulated the highly charged nature of the debate around capital punishment in America today. It indicated that the ethical and legal conundrum induced by a boycott of medical drugs being sold to US corrections departments has now percolated right to the pinnacle of the country’s judicial system.

In Glossip v Gross, the court is being asked to decide whether the use of a new drug in executions, midazolam, fell within the boundaries of the US constitution’s ban on cruel and unusual punishment. A string of recent procedures have shown prisoners displaying visible signs of prolonged distress – most notoriously the execution of Clayton Lockett almost exactly one year ago, in which he thrashed and groaned on the gurney in full view of witnesses, taking 43 minutes to die.

Related: Clayton Lockett writhed and groaned. After 43 minutes, he was pronounced dead

Justice Elena Kagan, who normally sides with the unofficial group of four liberal judges on the nine-strong panel, put the issue confronting the court most vividly. She questioned whether the state of Oklahoma could give a solid guarantee that midazolam could produce and sustain such deep unconsciousness in a prisoner that he would feel no pain throughout the execution.

“There is huge uncertainty about what happens when somebody is given [midazolam]. The evidence is that nobody can tell – that nobody knows for sure whether midazolam will work,” Kagan said.

If that were the case, she argued, then what would happen when a prisoner is administered the third drug in the triple lethal injection protocol – potassium chloride, which stops the heart? “People say that potassium chloride is like being burned alive – they talk about being burned at the stake, which everyone agrees is cruel and unusual.”

Kagan’s probing was backed up by other justices on the more liberal side of the court, notably Sonia Sotomayor, who has led the recent charge within the highest court against the increasingly maverick methods deployed by death penalty states. She suggested that the scientific experts used by Oklahoma to justify the use of midazolam were “plainly wrong” and said she was minded to believe nothing that the state said in testimony.

Stephen Breyer pointed to studies that showed that midazolam, which is a sedative normally used to reduce anxiety in patients rather than to prevent pain, was unreliable as an anesthetic. Cases had been reported where patients who had been rendered unconscious with midazolam were “jolted back into consciousness” and even woke up again when they felt a sudden infliction of pain.

“You lose right there,” he told Oklahoma’s attorney, Patrick Wyrick.

Both sides agreed that this case was not an existential discussion about the death penalty in itself. In its last hearing on the subject, in 2008, the supreme court ruled that the triple injection was constitutional, and there appeared to be no appetite among the justices to go back on that.

Breyer, however, did sound the only note of the morning in which capital punishment was questioned at its core. “If there’s no method of executing a person that does not cause pain, that may show the death penalty is not consistent with the eighth amendment,” he said.

On the other side of the supreme court rift, the conservative-leaning justices made little attempt to disguise their rising anger at the worldwide boycott on lethal injection drugs that over the past five years have bled stocks dry. In Oklahoma, drugs that once dependably formed the basis of the state’s execution protocol – sodium thiopental and pentobarbital – are now unattainable through a combination of government restrictions and the refusal of manufacturers to sell the chemicals to US prisons.

“Let’s be honest about what’s going on here,” said Samuel Alito. “This court has ruled that executions are constitutional, but some people are trying to abolish the death penalty.”

Alito added that the boycott had made “impossible for the states to carry out executions with little or no pain – they are having to resort to drugs such as [midazolam] which cause disputes”.

Justice Antonin Scalia concurred that “abolitionists have put pressure on manufacturers. The abolitionists have rendered drugs that are 100% safe unavailable.”

The court’s chief justice, John Roberts, pressed Robin Konrad, the attorney representing the four death row inmates who brought the petition (one of whom has already been executed), to give examples of alternative ways of killing prisoners. When she mentioned the state’s recent decision to make nitrogen gas its back-up method, Roberts burst out: “Are you suggesting the gas chamber is preferable?”

Roberts complained that Glossip, the death row inmate named on the petition, “was recognized as guilty, is eligible for the death penalty, but you put us in the position where he can’t be executed and yet you have no alternative”.

As so often in the modern era of the supreme court, what emerges from the Glossip case – if anything – may well boil down to the view of the traditional swing vote on the panel: Justice Anthony Kennedy. To the frustration of those reading the tea leaves of the oral argument, he gave no clue as to his personal leanings, only intervening once over a technicality.

What appears certain from the proceedings is that the supreme court’s ruling, expected in the summer, will not challenge the death penalty as an ongoing facet of modern American life. But in reaching their majority decision, the justices may put out a signal – one way or the other – that could have a far-reaching bearing on the future application of the judicial taking of life.