Use of execution drug, allowed

Supreme Court of United States In a significant decision wherein four Oklahoma death-row inmates (petitioners) filed for preliminary injunction contending that the method of execution involving midazolam as the first drug, used by the State of Oklahoma violates the Eighth Amendment because it creates an unacceptable risk of severe pain, the Court by a majority of 5:4 affirmed the Tenth Circuit and District Court finding stating that the petitioners failed to establish that the use of a massive dose of midazolam by Oklahoma in its lethal injection protocol involves a substantial risk of severe pain associated with the administration of second and third drug during execution. Alito J., giving a majority judgment also observed that the claims made by the petitioners cannot succeed as in an execution claim, it must be established that the method used creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives, which the petitioners failed to establish in the instant case.

According to the facts Oklahoma used a three drug protocol to carry out executions which involved sodium thiopental as the first drug. Due to pressure from anti-death-penalty advocates, the pharmaceutical companies stopped manufacturing the drug. As a result Oklahoma decided to use 500-mg of midazolam, a sedative, as the first drug in its three-drug protocol. Petitioners, thus argue that midazolam, employed in three-drug protocol, fails to render a person insensitive to pain associated with the administration of second and third drug.

The Court further held that the argument of the petitioner that the Eighth Amendment does not require them to identify an alternative for the controversial drug, cannot stand as it is inconsistent with the opinion formulated in Baze v. Rees, 553 U. S. 35, 61 (2008), which imposed a requirement of identifying a known and available alternative. Sonia Sotomayor J., giving the dissenting opinion said, “The court’s available-alternative requirement leads to patently absurd consequences”. Breyer J., forwarding another dissenting opinion asked the Court for a full briefing on a more basic question i.e., whether the death penalty violates the Constitution. Richard E. Glossip v. Kelvin J. Gross2015 SCC OnLine US SC 5, decided on 29.06.2015

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