Steven D. Schwinn is an Associate Professor of Law at The John Marshall Law School in Chicago.
In early 2014, Oklahoma had a problem. The state planned to execute Clayton Lockett with a three-drug lethal injection cocktail, but its sources for its critical first drug dried up. The first drug, traditionally a barbiturate, is supposed to render a condemned sufficiently insensate so as not to feel the excruciating pain of the second and third drugs, which paralyze the body and induce cardiac arrest. Without the first drug, the second and third drugs would produce a level of pain that would violate the Eighth Amendment.
But states, including Oklahoma, had a harder and harder time getting an adequate first drug. That’s because suppliers refused to supply the traditional barbiturates for use in lethal injections, and the U.K. and European Commission banned the export of traditional barbiturates for use in lethal injections. These were largely reactions to the dogged and determined efforts of human rights activists fighting a global war against the death penalty. Indeed, some Oklahoma officials went so far as to shroud their drug purchases in secrecy, using off-the-books petty cash to purchase drugs in an apparent attempt to protect their sources from bad publicity. The secrecy itself became an issue in extended litigation. The dearth of sources for the traditional first drugs forced states, including Oklahoma, to scramble for an alternative.
Oklahoma found an alternative in a drug called midazolam, previously used in executions in Florida and Ohio. Midazolam is a sedative, not a barbiturate. It is widely available and often used to relax patients before anesthesia for surgery. But unlike the traditional barbiturates, it does not reliably induce and maintain a deep, coma-like state that renders a person insensate to pain. So, for example, when Ohio used midazolam in a lethal injection, the condemned snorted and gasped for air before dying.
Still, Oklahoma decided to use midazolam for Lockett’s execution. Officials first struggled to find an IV line, but, after about an hour, finally placed a needle in Lockett’s femoral vein. Officials administered 100 milligrams of midazolam, enough to “render an average person unconscious,” according to the District Court, but Lockett nevertheless awoke, writhed in his restraints, and spoke, “[t]his s*** is f***ing with my mind,” “something is wrong,” and “[t]he drugs aren’t working.”
Lockett’s experience was not isolated. Other condemned prisoners also awoke, writhed, and otherwise indicated extreme pain in a spate of botched executions across states using midazolam. In one of those executions, the officials administered a full 750 milligrams of the drug. Even that amount did not render the condemned insensate to the pain of the second and third drugs.
After Lockett’s execution, Oklahoma adopted a new protocol that included 500 milligrams of midazolam, on the theory that this amount should induce a deep unconscious state that would render a person unresponsive to pain. When Oklahoma death-row inmates sued, the state’s expert testified that 500 milligrams should be plenty to “paralyz[e] the brain” and render a person insensate to pain, despite evidence that said that the drug cannot reliably induce a deep unconsciousness, in part because it tops out at a particular ceiling. But the expert’s testimony wasn’t based on any study or source, and the state itself seemed to disavow key parts of it. The lower courts deferred to the state and upheld the use of midazolam.
In short, Oklahoma scrambled to find a new first drug after market forces dried up its sources for its traditional first drugs, and after it could no longer protect sources by purchasing drugs under the radar. State officials, with no medical expertise, turned to midazolam, a drug used in other states with questionable results. The state used midazolam in Lockett’s gruesome and botched execution, just as other states later used the drug in their own gruesome and botched executions. But instead of rejecting midazolam and looking for an alternative, the state doubled down and issued a protocol with a higher dose, even though the medical evidence says that the drug tops out with a ceiling effect. The state then defended its new protocol with a single expert’s weak and inconsistent testimony, a key part of which it later disavowed. The lower courts deferred to that testimony as against the plaintiffs’ two experts. The courts then rejected the plaintiffs’ claims, because they (the plaintiffs) couldn’t show that midazolam’s risk of harm was substantial when compared to a known and available alternative.
Against this disturbing backdrop, the Supreme Court did something this week that might have surprised a passive observer: it upheld Oklahoma’s protocol. The ruling is nothing short of a guidebook through the Court’s Wonderland rules for method-of-execution claims.
How did we get to a point where non-medical state officials can essentially experiment with lethal injection cocktails, and a lay plaintiff has to show a lack of viable alternatives to his own execution in order to successfully protect an enumerated fundamental right? It all starts with the Court’s old saw that because the death penalty is constitutional, “[i]t necessarily follows that there must be a [constitutional] means of carrying it out.” But the Court mis-uses this aphorism to put a heavy thumb on the scale in favor of any means a state adopts. This simply doesn’t follow: just because there is a constitutional means of implementing the death penalty doesn’t mean that every means should get nearly blind judicial deference. An example from another area illustrates the point: the First Amendment allows states to regulate some speech (in the same way that the Eighth Amendment allows states to implement the death penalty), but that doesn’t (and can’t) give a free pass to all state regulation of speech.
If that weren’t bad enough, the Court mis-uses this “truism” to place the burden on the challenger to show “that the method [of execution] presents a risk that is ‘sure or very likely to cause serious illness and needless suffering,’ and give rise to ‘sufficiently imminent dangers.’” As part of this, the Court says that a challenger “must identify an alternative that is ‘feasible, readily implemented, and in fact significantly reduce[s] a substantial risk of severe pain.” But this is a strange burden to put on a challenger. For one, a challenger (usually lay, without medical training or expertise) is poorly positioned to argue that a particular method of execution causes suffering. This is especially true when, as here, the method is concealed behind state secrecy, and the method is necessarily evolving and experimental. The state is far better positioned to bear the burden that a method does not cause pain. (Although the state faces its own challenges, what with the resistance to involvement in the death penalty by medical professionals. As a result, non-medical state officials are truly experimenting on the condemned – yet another shocking and bizarre result of the Court’s approach. Given the lack of medical expertise by anyone involved in executions, challenger or state, the Court’s statement that it lacks relative expertise, and its resulting deference to the state’s expert, is curious.) And this is to say nothing of the weirdness of a rule that requires a condemned to come up with his own pain-free method of execution.
For another, a challenger never bears this kind of extraordinary burden in protecting other enumerated fundamental rights. The Court’s method-of-execution jurisprudence stands alone in placing a weighty burden on the challenger, with extreme judicial deference to the state. Indeed, the courts in this case gave nearly blind deference to the state’s sole expert, who did not base his testimony on any studies or third-party reports (but apparently on a website, www.drugs.com, and the data sheet produced by midazolam’s manufacturer), as against the challengers’ two well-versed experts. The Court’s approach amounts to something less than rational basis review, because it placed such a heavy burden on the challengers. This is odd, given the stakes. In other areas of individual rights, physical liberty is a highly privileged interest, triggering heightened judicial review. But in the Court’s method-of-execution rules, a condemned prisoner’s interest against “cruel and unusual punishment,” one of the more important liberty interests, gets only the lowest-level constitutional test.
It would be easy to write this all off as bias against the condemned. Indeed, the Court’s ruling is chock full of statements reflecting this kind of bias, from blaming a condemned prisoner for his own painful fate (suggesting that Lockett caused the problems with the IV line by cutting himself before his execution) to blaming the anti-death-penalty activists for the dry-up in the market for traditional barbiturates. (One might have thought that we would celebrate, not criticize, this kind of extra-judicial exercise of democratic power. That’s just one more strange feature of the Court’s opinion.)
But on some level, even the Court’s conservatives, who crafted this Wonderland jurisprudence, must know that Justice Stephen Breyer is right in his many critiques of the death penalty. And on some level, they must recognize that there are good reasons why the United States stands nearly alone among advanced industrialized democracies (and with some pretty sketchy non-democracies) in continuing to administer the death penalty. If so, this amounts to willful blindness. And it will only lead to more puzzling and disturbing law, and more shockingly botched executions.