Monday’s Supreme Court decision in Glossip v. Gross, upholding the use of the drug midazolam as part of Oklahoma’s execution protocol, is a victory for supporters of the death penalty. But it will do little to quiet this nation’s ongoing crisis of confidence in the ability of lethal injection to ensure that executions are safe, reliable, and humane. The court’s decision merely postpones the day of reckoning for lethal injection.
Once thought to be a panacea in the death penalty system, lethal injection seemed to offer the ultimate assurance that executions could be carried out without cruelty. It gave the death penalty the appearance of a medical procedure, with the death chamber resembling a hospital operating room. Lethal injection quickly became the method of choice in US executions, with 86 percent of executions from 1976 to 2014 being carried out by that method.
But lethal injections are now being botched in many ways. Inmates have veins that are difficult or impossible to find. Intravenous lines collapse, drugs leak into soft tissue, and inmates have to be poked dozens of times by inexperienced personnel before usable veins can be located. In some instances, they have even been known to try to help their executioners locate veins in their legs, groin, or neck.
Responding to shortages of sodium thiopental, the drug used by every state until 2010 as the first part of the standard three-drug protocol, states have been scrambling to find which drug, or drug combination, will work most efficiently. Eight states, including Texas, Georgia, and Missouri, abandoned the three-drug protocol entirely and carried out executions using just one drug. They used pentobarbital or phenobarbital, even though these drugs have generally been rejected because they are normally used only for animal euthanasia. Others, including Oklahoma, Arizona, Florida, and Ohio, turned to midazolam — a sedative not used on its own to induce or maintain anesthesia in medical procedures — as the first drug in their lethal-injection execution process.
A series of badly botched executions in 2014 — of Dennis McGuire in Ohio, Clayton Lockett in Oklahoma, and Joseph Wood in Arizona — suggest that, despite Monday’s court’s ruling, midazolam is not the answer to lethal injection’s problems. That drug was used in the McGuire execution and left him gasping for air for some 25 minutes while the drugs took effect. In April 2014 Lockett suffered greatly when midazolam failed to effectively sedate him. Four months later, Wood was given a lethal injection cocktail that included 750 milligrams of midazolam — much higher than the dosage Lockett received or the 500 milligrams now mandated in Oklahoma’s revised execution protocol. Nonetheless, it took two hours for Wood to die, during which time, as one witness put it, he was like “a fish on shore gulping for air.”
Those who now are executed by lethal injection can have no assurance that their deaths will be trouble-free. Indeed, of the methods of execution most often used during the 20th and early 21st centuries — hanging, electrocution, the gas chamber, lethal injection — the last has proven to be the least reliable and the most prone to mishap, with more than 7 percent of all lethal injections being botched in some way. Lethal injection seems to be just another broken part of a death penalty system which appears to be collapsing under its own weight.
The Supreme Court’s decision does little to change that. It turns a judicial blind eye to lethal injection’s well-documented problems and may lead some to be complacent, at least until headlines announce the next botched execution.
Austin Sarat, associate dean of the faculty and professor of jurisprudence and political science at Amherst College, is author of “Gruesome Spectacles: Botched Executions and America’s Death Penalty.’’