The Supreme Court heard the arguments in the Lethal Injection case on Wednesday, after death-row inmates have pleaded to make their voice heard, in regards to the use of one of the three drugs in the lethal injection, midazolam. This drug was blamed for the wrongfully performed execution of Clayton Lockett in 2014.
Tensions were kept high during this case, as the Justices were put in a very difficult position. Supreme Court Justice Samuel Alito laid blame on the anti-capital punishment activists, whom he believes are waging “a guerilla war on the death penalty” by making it considerably harder to put into practice the actual execution due to the shortage of drugs used in the procedure.
This is actually how the controversial midazolam came to be used. Before 2008, sodium thiopental was the first drug used in the lethal injection cocktail. But when manufacturers stopped selling it to prisons or even ceased producing it all together, pentobarbial took its place. Similar situations brought midazolam in the three-drug-cocktail.
It is not yet fully known what lead to the prolonged suffering of Clayton Locket, who struggled for about 45 minutes to die, due to the incomplete anesthesia that the midazolam provided. The autopsy revealed that the lethal injection team had not properly install the IV line, which majorly contributed to his reaction.
Midazolam has been used since the Lockett case, again with controversial results. It is because of this situation that death-row inmates have appealed to the Supreme Court, asking for their right to receive a death without pain. And since the effects of the seconds drug, potassium chloride, have been described as being burnt alive, by Justice Elena Kegan herself, it is clear that a new solution must be found.
But this case makes it is almost too easy to shift to the rightful use of the death penalty and so tensions rose during the session.
Justice Antonin Scalia expressed his direct frustration with this case : “And now you want to come before the court and say, ‘Well, this third drug is not 100 percent sure.’ The reason it isn’t 100 percent sure is because the abolitionists have rendered it impossible to get the 100 percent-sure drugs. And you think we should not view that as relevant to the decision that that you’re putting before us?”.
Staff attorney at the Berkeley Law Death Penalty Clinic, Jen Moreno, pointed out the need for replacing the midazolam because, as she explains, it can’t do what it’s meant to do. Moreover, she pointed out that in other states, other drugs are being used in place of the midazolam in the procedure and therefore there is an existing solution.
It remains to be seen what will be decided after the Supreme Court heard the arguments in the Lethal Injection case, but the matter remains as controversial as it’s ever been, putting the Justices involved in a very complicated situation.