Supreme Court Upholds Oklahoma’s Use of New Execution Drug

Loaded on Feb. 2, 2016 by Derek Gilna published in Prison Legal News February, 2016, page 30

Filed under: Death Penalty, Death Row. Location: Oklahoma.

Oklahoma death row prisoners filed a § 1983 civil rights lawsuit challenging the use of a new drug by prison officials to put them to death, but their effort fell short in the U.S. Supreme Court. The state had sought to use midazolam instead of sodium thiopental to perform executions, as sodium thiopental was in short supply.

Four of the plaintiffs had moved for a preliminary injunction, which the district court denied. The prisoners appealed, the Tenth Circuit affirmed and the U.S. Supreme Court held that the plaintiffs were unlikely to prevail on the merits of the case – a prerequisite for issuance of a preliminary injunction.

Justice Antonin Scalia wrote the Court’s June 29, 2015 majority opinion, stating, “First, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of-execution claims. See Baze v. Rees, 553 U.S. 35, 61, 128 S.Ct. 1520, 170 L.Ed.2d 420 (2008).... Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.”

One of the areas of contention was the effectiveness of midazolam to anesthetize the prisoner being executed, with the state’s expert, Dr. Roswell Evans, maintaining that the quantity of the drug to be used was more than sufficient, and the prisoners’ experts stating the scientific evidence did not substantiate that position. However, Scalia’s reasoning spoke less to the constitutionality of the death penalty than to the narrow issue of whether the Supreme Court could disturb the district court’s findings of fact.

Justice Scalia wrote that the “Court has never invalidated a State’s chosen procedure for carrying out a sentence of death as the infliction of cruel and unusual punishment.... Our decisions in this area have been animated in part by the recognition that because it is settled that capital punishment is constitutional, ‘[i]t necessarily follows that there must be a [constitutional] means of carrying it out.’”

Death penalty opponents were disappointed but not surprised by the ruling, as the constitutionality of the death penalty was not the principal issue in the case. One other issue raised a considerable amount of interest, though. The state’s expert, Dr. Evans, had relied in part on a website, www.drugs.com, to form his expert opinion about midazolam, even though the site states it “is not intended for medical advice” – a point noted in both the majority opinion and dissent. See: Glossip v. Gross, 135 S.Ct. 2726 (2015).