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Court Upholds Lethal Injection Cocktail, Breyer Strongly Dissents

By Casey C. Sullivan, Esq. | Last updated on

The Supreme Court released three opinions today, one day before the end of the term. Following last week's headline-grabbing opinions on marriage and healthcare, the Court continued making news, issuing rulings on the Clean Air Act, electoral redistricting and, chief among the opinions, the lethal injection.

In the lethal injection case, Glossip v. Gross, the Court upheld the constitutionality of Oklahoma's lethal injection program. Death row prisoners had challenged the state's lethal injection cocktail, saying it failed to numb the pain of the lethal injection drugs, leading to a horrific death that would feel like being burnt alive. In their dissent, Justices Breyer and Ginsburg came out against the death penalty itself, arguing that capital punishment as a whole is unconstitutional.

The Cocktail Controversy

The prisoners sought to enjoin Oklahoma's use of the lethal injection cocktail, which is made of potassium chloride, pancuronium bromide, and midazolam. Together, these chemicals are meant accomplish a humane execution, with potassium chloride stopping the heart, pancuronium bromide paralyzing the prisoner, and midazolam anesthetizing him, preventing the executed inmate from feeling what would otherwise be excruciating pain.

According to the prisoners, however, midazolam is unreliable -- it creates a "chemical entombment" which simply hides a prisoner's suffering, but does not dull him to it. Midazolam has been used in several botched executions, some of which observers likened to torture.

The Majority's Ruling

Midazolam was first used in executions after previous anesthetics were removed from the market. The fact that there exist so few alternatives to midazolam was, no pun intended, fatal. The Court, with Justice Alito writing and joined by Roberts, Scalia, Kennedy and Thomas, began by stating that the prisoners had failed to provide a "known and available alternative method," as required by method-of-execution claims.

Sotomayor, writing the primary dissent, describes that requirement as "legally indefensible" and likely to have absurd results -- allowing cruel methods of execution solely because a petitioner has failed to show a better alternative.

Second, the prisoner's claims that midazolam carried an unconstitutional risk of harm was not established well enough, the majority ruled. The opinion emphasized the factual findings the district court made in initially upholding Oklahoma's lethal injection cocktail. Evidence shows, the Court ruled, that an appropriate dose of midazolam will induce a coma. The prisoner's claims to the contrary not were unpersuasive.

Breyer and Ginsburg Reject the Death Penalty Altogether

Justice Breyer's dissent, and the two concurrences issued to respond to it, looked to the "more basic question: whether the death penalty violates the Constitution." It does, Breyer argued, joined by Ginsburg. In a dissent that is sure to be taken up by death penalty opponents, Breyer asserted that the unreliable and arbitrary nature of capital punishment renders it unconstitutional.

Research shows that innocent people have been executed, Breyer says. The continued existence of exonerated death row inmates shows that the punishment cannot be reliably applied.

The dissent is full of research, acknowledged as controversial, showing that four percent of those executed are innocent, that the majority of death penalty cases have significant procedural errors, and that capital punishment is arbitrarily employed. These factors, Breyer argues, make it "highly likely" that the whole system unconstitutional.

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