On 29 June 2015, in Glossip v. Gross 576 U. S. ____ (2015), Justice Alito gave the majority opinion (joined by Roberts C.J., and Scalia, Kennedy and Thomas, J.J.), which grasped onto the wavering tautology that because the death penalty has been held by the Supreme Court of the United States (SCOTUS) to be constitutional, there must be a constitutional means of implementing the punishment.
Following the affirmation in Baze v. Rees 553 U.S. 35 that lethal injection is not a violation of the Eighth Amendment (the prohibition on cruel and unusual punishment) per se, and given the scarcity of FDA licensed products for use in lethal injection, states wishing to continue to implement the punishment have been seizing dwindling supplies of the licensed substances and trying to embrace new pharmacology to put people to death.
The legal challenge brought in Glossip centred on Oklahoma’s experiment with the drug midazolam in its lethal injection protocol, and whether the effects of the drug were such as to amount to cruel and unusual punishment under the Eighth Amendment. The factual question facing SCOTUS was whether this sedative can “induce” and “maintain” unconsciousness so that the condemned person will not feel the noxious stimuli of the paralytic agent (which inhibits muscular-skeletal movements) and potassium chloride (which interferes with the internal electrical signals, resulting in cardiac arrest).
Justice Alito affirmed the District Court’s acceptance that a 500-milligram dosage of midazolam would make it a “virtual certainty” that an inmate would experience sufficient unconsciousness. This pharmacological effect was endorsed by Dr Roswell Evans, a doctor of pharmacy. The Court of Appeals for the Tenth Circuit had also upheld this acceptance of point of fact, and maintained that the finding was not erroneous.
The SCOTUS majority opinion, and the concurring opinions of Justice Thomas and Justice Scalia, accepted this point of fact and affirmed there is no “objectively intolerable risk” resulting in the infliction of pain in this method of execution. As a result, the use of midazolam in Oklahoma’s injection protocol was not unconstitutional under the Eighth Amendment.
In her dissenting opinion, Justice Sotomayor firmly disagreed. Firstly, she deconstructed the “scientifically unsupported and implausible testimony” of Dr Evans, and secondly, determined that it is quixotic for a state to find fault with the petitioners for “failing to satisfy the wholly novel requirement for proving the availability of an alternative means for their own executions.”
Dr David Lubarsky, an anaesthesiologist, and Dr Larry Sasich, a doctor of pharmacology, gave testimony that midazolam is subject to a “ceiling effect” and that although unconsciousness is “induced,” there is evidence, and thus, serious doubt, that it will “maintain” the claimed insentient state. Challenging Dr Evans’ testimony, both experts explained that midazolam induced unconsciousness was only sufficient for minor surgical procedures, not for maintaining insentience and immobility during the extreme pain caused by the trauma inflicted by the next two drugs administered in Oklahoma’s lethal injection protocol after the dose of midazolam.
Dr Evans’ methodology was also challenged. Justice Sotomayor noted that he, “cited no scholarly research in support of his opinions.”; in contrast to Drs Lubarsky and Sasich references to pharmacological scholarship. Justice Sotomayor condemned Oklahoma’s execution protocol, as it “may well be the chemical equivalent of being burned at the stake.”
Justice Breyer also delivered a powerful dissent, joined by Justice Ginsberg. Moving away from the technical issues of the midazolam debate, Justice Breyer used the litigation to call for a “full briefing” on the constitutionality of the death penalty. He stated that the federal and state safeguards in the capital judicial process are built upon a “false utopian premise.” He believes the punishment is: arbitrary; fails to identify the “worst of the worse” offenders; has insurmountable reasons for excessive delays before execution; is an illegitimate form of retribution; has an unproven special deterrent effect; is inherently cruel; and that by retaining it, the United States is becoming increasingly marginalised given the global trend towards abolition.
Considering the history of the United States capital judicial system, it will not be the Glossip v. Gross majority judgment that will stand the test of time. It is the minority opinions of Justice Sotomayor, which articulates human dignity in punishment, and Justice Breyer, a tour-de-force of abolitionism, which will be revealed, with time, as monuments for the future abolition of the death penalty in the United States.