Why is Glossip hard?

The following is by Corinna Lain (Richmond).

I’ll be guest blogging in June, and am very much looking forward to sharing ideas and, hopefully, generating conversation then. But after listening to this week’s oral argument in Glossip v. Gross, the lethal injection case currently before the Supreme Court, I feel the need to share now.

And here’s what I can’t figure out: why is this case hard?

We’ve got a district court that essentially upheld Oklahoma’s use of midazolam as the first drug in its 3-drug lethal injection protocol against a claim that it would not, and could not, insulate the condemned from the pain associated with the next 2 drugs of the protocol. The pain associated with those 2 drugs is undisputed—one of them is a paralytic that slows and then stops the diaphragm so the condemned slowly suffocates to death, and the other has been dubbed “liquid fire” because it produces the feeling of being burned alive. The Supreme Court has already held that if the first drug doesn’t insulate the condemned from feeling the last two drugs, that’s a violation of the 8th Amendment cruel & unusual punishments clause. So it all comes down to whether midazolam can reliably do that.

So back to my question: why is this case hard?

Midazolam is a sedative, not an anesthetic; it is uncontested that it has no anesthetic properties. The district court said that didn’t matter, relying on a doctor who opined that 500 milligrams of midazolam was enough to kill someone, so even if it wasn’t an anesthetic, it would still render condemned inmates unconscious so they wouldn’t experience the pain. The problem with that is (1) the doctor’s opinion was extrapolated from an estimated lethal dose amount and he made a math error of 3 decimal points in doing so, so the correct estimated lethal dose is actually 4,970 milligrams rather than 4.97 milligrams or even 497 milligrams (an error that is uncontested); (2) even if the drug was lethal at the 500 milligram amount, just because a drug is big & bad enough to kill you doesn’t mean it’s going to render you unconscious and unable to feel pain first; (3) even the sources upon which the doctor relied were sketchy—drugs.com (which explicitly states that its information “is not intended for medical advice, diagnosis or treatment”) and OSHA’s material safety data sheet (which explicitly disclaims “any warranty, express or implied, regarding its correctness”); and (4) there’s a clear consensus in the scientific community that goes entirely the other way. Interestingly, the Court now has an amicus brief by a group of pharmacology professors who are not in support of either side, but want the Justices to at least get the science right. And what they say is that midazolam is incapable of rendering the condemned unconscious at a level that would resist ‘noxious stimuli’ like surgery and pain-inducing drugs.

So you might be thinking how in the world did we even get here? My take is it’s all too easy to dismiss these claims as just another condemned inmate trying to get another day. And you can see this dynamic at the oral arguments in Glossip.

So while Justice Breyer is scratching his head trying to find something, anything, that actually supports the district court finding, and Justices Kagan and Sotomayor are taking Oklahoma to task for quoting medical propositions out of context and misleading the Court, Justices Scalia and Alito have a different point to make: this is all the abolitionists’ fault.

You have to be able to point to a better drug to get the job done, they say, and the reason better drugs aren’t available is because abolitionists have put pressure on drug manufacturers not to sell them (or at least not to sell them to executioners). They’re right about the pressure (kinda sorta—this is largely about European abolitionism, as a forthcoming article shows) but they’re wrong about the condemned having to come up with a lethal injection protocol that works in order to avoid a torturous death with a lethal injection protocol that doesn’t.

So long as capital punishment is legal, there has to be a constitutional way to carry it out, so the argument goes. I think that’s contestable, but even assuming it were true, the Supreme Court has already upheld a number of other execution methods, so the availability of other lethal injection protocols is a red herring. Weird as it sounds, I think there’s a good argument for the firing squad as a more humane method of execution, though I’ll save those musings for my stint as guest blogger. The point is this: if an execution method causes lingering death and/or unnecessary pain (and everything we know about midazolam suggests it does both) then that violates not just our sense of decency, but the constitution as well. And that’s true whether there’s a better lethal injection protocol out there or not.

So why is Glossip a hard case? Best I can figure, it’s because frustration with the success of abolitionists has created a blind spot on the law.