A Supreme Court hearing Wednesday debated the legality of a controversial drug used in several botched executions. But the case impacts much more than just one injection cocktail–the fate of the death penalty could hang in the balance.
Midazolam,the drug in question, makes up a third of a cocktail used on death row. In 2014, it failed to keep inmate Clayton Lockett in a coma during his execution–he woke up writhing in agony only to die thirty minutes later from a heart attack.
Charles Warner, an inmate who was a plaintiff in the current case, failed to win a stay of execution from the court and was executed with the cocktail. According to an AP reporter who watched him die, he said “It feels like acid” and “My body is on fire.”
At one point in the hearing, Justice Elena Kagan compared the use of the drug to burning someone at the stake. “Suppose that we said we are going to burn you at the stake, but before we do, we are going to give you an anesthetic before we burn you alive,” she said to Solicitor General Patrick Wyrick. “Maybe you will feel it; maybe you won’t.”
The question at hand for the court is somewhat complicated–in 2008, the court ruled that lethal injections are not cruel and unusual punishment and therefore allowed under the Eighth Amendment. But they also laid out specific ingredients necessary for a humane death. This included the anesthetic sodium thiopental.
Once European manufacturers began boycotting the death penalty and refusing to produce sodium thiopental, midazolam became its replacement. The court must now decided whether midazolam is equally humane, or whether it poses “a substantial and objectively intolerable risk of serious harm”–the standard set in Baze v. Rees.
Pulling midazolam would have a serious impact on executions–lethal injections are the most-used means of execution in every state. And broader questions of the Eighth Amendment have inevitably come into play.
In Wednesday’s hearing, Justice Stephen Breyer argued that “if there is no method of executing a person that does not cause unacceptable pain, that – in addition to other things – might show that the death penalty is not consistent with the Eighth Amendment.”
Conservative justices, meanwhile, appeared eager to preserve the lethal injections. “Is it appropriate for the judiciary to countenance what amounts to a guerrilla war against the death penalty, which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment with little, if any, pain?” Justice Samuel Alito asked.
Chief Justice John Roberts and Justice Anthony Kennedy are believed to be the key votes in the case.
