The Supreme Court helped states struggling to find enough drugs to executive inmates when it allowed use of a controversial anesthetic on Monday.
But death penalty opponents and experts say the ruling will do little to ease the growing shortage.
On Monday, the court ruled 5-4 that a drug used in several botched executions doesn’t violate the Constitution’s prohibition on cruel and unusual punishment.
The drug, midazolam, was used last year in a botched execution in Oklahoma where inmate Clayton Lockett took 45 minutes to die. The challenge, brought by several death row inmates, argued the drug is not an adequate anesthetic.
The ruling means that Oklahoma and Florida, which both held off on executions to await the court’s ruling, can move forward. Other states could turn to midazolam, as it has been difficult to get more traditional anesthetics.
Most states performing executions use a concoction that doesn’t include midazolam. They either rely on a single drug called pentobarbital or a mixture that uses sodium thiopental to put the inmate to sleep and two other drugs to stop their heart.
There are 31 states that have the death penalty, but a majority of them haven’t performed executions in years, said Austin Sarat, a professor at Amherst College and author of Gruesome Spectacles: Botched Executions and America’s Death Penalty.
The federal government and U.S. military also have the death penalty.
However, the states have had problems with a drug shortage for months.
Pharmaceutical companies have largely stopped providing the drugs used in the lethal injection concoction, primarily sodium thiopental and pentobarbital. Part of the reason is that the European Union forbids companies from exporting drugs used in capital punishment, Sarat told the Washington Examiner.
In addition, U.S.-based companies don’t want to be associated with the death penalty, he said.
Compounding pharmacies, which make a customized preparation of an execution drug, also have started to balk at providing the drugs.
Out of the 31 states with capital punishment, only Texas and Missouri have performed an execution recently, and that is mainly because they can get the drugs from a compounding pharmacy, said Richard Dieter, of the Death Penalty Information Center, a nonprofit that opposes capital punishment.
Texas currently uses pentobarbital in executions so the court ruling doesn’t have any impact on the state, said Robert Hurst, spokesman for the Texas Department of Criminal Justice, which oversees executions.
States could turn to midazolam, but only as a last resort, one expert said.
“It is still a risky alternative,” said Dieter. “The decision did not give midazolam a gold star or conclude it has no problems with it.”
Justice Sonia Sotomayor, who joined three other justices in dissent, said in her opinion that the use of the cocktail containing midazolam exposes inmates to “what may well be the chemical equivalent of being burned at the stake.”
States could worry about the same botched execution occurring that happened in Oklahoma, he added. Ohio, for instance, has said it won’t use midazolam again.
Arizona has said it will use the drug but is seeking alternatives.
Meanwhile, other states have turned to earlier methods of execution, such as Utah, which has turned to firing squads if injection drugs aren’t available.
The same problems that led to the shortage of other drugs also could come into play. While midazolam is available as a generic and is made by multiple manufacturers, those companies could decide to stop providing it to states for the same reason, Dieter said.
The ruling does not force companies to provide the drug to states, he added.
The battle over midazolam in the courts could also continue.
“We will continue to work in the courts to hold the states accountable in order to try and prevent botched executions in the future,” said Dale Baich, an attorney for one of the inmates in the court challenge.
