On Friday 23^rd January, 2015, the US Supreme Court granted three Oklahoma death row inmates certiorari to challenge the state’s three-drug lethal injection protocol. In Baze v. Rees 553 U.S. 35 (2008), it was held that an execution protocol which provided for an initial injection of a fast-acting barbiturate (sodium thiopental), then a paralytic agent (pancuronium bromide) which stops respiration, and finally a drug to induce a cardiac arrest (potassium chloride), did not violate the US Constitution’s Eighth Amendment’s Cruel and Unusual Punishments Clause.  

In Warner v. Gross, (No. 14-6244, 12 January, 2015) the United States Court of Appeals for the Tenth Circuit, denied a challenge to Oklahoma’s adoption of midazolam as a replacement for sodium thiopental. As a result of the post-Baze decline in Food and Drug Administration licences to American pharmacological companies to supply drugs to state and federal prisons for the use in executions, and the contributory effect of international human rights law, such as the EU’s Commission Implementing Regulation (EU) No. 1352 (2011), there has been a depletion of supplies of sodium thiopental for the use by American prisons in the death penalty.

The retentionist states have had to identify an alternative drug to formulate an execution. Whilst Baze acknowledges that “some risk of pain is inherent in any method of execution,” and that “the Constitution does not demand the avoidance of all risk of pain in carrying out executions,” a violation of the Eighth Amendment does occur when “the conditions presenting the risk must be sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.”

The current litigation has introduced substantial medical evidence that Oklahoma’s use of midazolam produces adverse reactions. On 29 April 2014, midazolam was used in the execution of Clayton Lockett. He strained on the gurney in extreme physical pain, claiming, “something is wrong” and the “drugs aren’t working.” He was not in a “coma-like state” following the initial drug, and the execution team observed a large swelling at the IV access point. The White House released a statement that the execution, “fell short of humane standards.”  

There is significant doubt as to whether midazolam can effectively act as a sedative in compliance with the Baze criteria and the three questions the US Supreme Court will consider in Glossip v. Gross are:

1)      Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, coma-like unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious?

2)      Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?

3)      Must a prisoner establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

The first two questions can be classified as normative constitutional issues within the assessment of the protocol. The third question places upon the defendant the task of establishing to a degree of medical certainty that the sedative will not act in accordance with constitutional standards. It potentially will place the burden on the defendant to establish that there is an alternative protocol that if the state adopts, will produce an execution of the defendant that does meet the Baze criteria.

Are we going to see the Court establish a new rule that assessing the legitimate standards set out in Baze, for pain in punishment, shifts from the responsibility of the state to the responsibility of the prisoner? This would be a quixotic result. What the litigation concerning the Oklahoma protocol demonstrates is that there are still, and perhaps always will be, irredeemable consequences that renders lethal injection a form of torture.