By Lisa Soronen

The answer is obvious: Use another drug. But is it constitutional? That is what the U.S. Supreme Court will decide in Glossip v. Gross.  

In Baze v. Rees, a 2008 case, the Supreme Court approved a three-drug method for lethal injections: Sodium thiopental to induce unconsciousness so pain is not felt when the second and third drugs cause paralysis and cardiac arrest.

Since then, drug companies have refused to make sodium thiopental. Oklahoma and other states have used midazolam instead of sodium thiopental. 

Possibly among other issues in Glossip v. Gross, the Supreme Court will decide whether Oklahoma’s use of midazolam violates the Eighth Amendment because it cannot reliably produce a deep, comalike unconsciousness that will prevent substantial pain caused by the second and third drugs.

In Baze, the court held that a stay of execution could be granted under the Eighth Amendment’s prohibition against cruel and unusual punishment. A prisoner must establish that a lethal injection protocol creates a “demonstrated risk of severe pain” that is substantial when compared to “known and available alternatives.”

The Oklahoma death row inmates in this case claim midazolam poses a substantial risk that they will experience severe pain because it has a “ceiling effect” (at a certain dose it will have no greater effect) and can cause “paradoxical reactions” such as agitation.

The district court rejected these concerns relying on expert testimony that midazolam at the high dose used in executions, regardless of a ceiling effect, “will have the effect of shutting down any individual’s awareness of pain” and that a paradoxical effect is rare and occurs most frequently at a low therapeutic dose.

The death row inmates in this case also claim they should not have to propose an alternative drug to avoid being executed using midazolam.

In Baze the death row inmates agreed that the three drugs proposed for their execution, if properly administered, would result in a humane death. They objected to Kentucky’s protocol because it might not be properly followed.

The court rejected their proposed one-drug protocol as “untried and untested.” In this case, the death row inmates object to having to propose an alternative drug formula where they are challenging the use of midazolam and not the execution protocol and are claiming that using midazolam violates the Eighth Amendment. 

Before the petition for review was granted, Oklahoma executed one of the inmates in this case using midazolam. The court has delayed the execution of the other three parties to this case. As the 10th U.S. Circuit Court of Appeals opinion discusses, Oklahoma used midazolam in Clayton Lockett’s 2014 execution, which it described as a “procedural disaster.”