As more botched lethal injections are being carried out, the US government is now closely monitoring what can be done to remedy an increasingly detrimental situation

Wednesday the US Supreme Court was stage to opening arguments in the case of Glossip v. Gross, centering on the mishaps in using the drug midazolam in executions, and whether or not it is constitutional.  Currently 32 use the death penalty, and all of which have it carried out using lethal injection.  For decades, lethal injection was seen as the most humane and effective way of implementing the death penalty, using a three-drug cocktail carried out in steps, first a drug to render a person unconscious, then one to cease respiration, and finally one to stop the heart.

It is this step in the process that has come under so much scrutiny. For many years states have used sodium thiopental (also know as sodium pentathol) to render the subject unconscious.  In 2008, the case Baze v. Rees challenged the regiment on the grounds of cruel and unusual punishment in the supreme court of Kentucky.  The court subsequently ruled 7-2 that  capital punishment was constitutional, but drug manufacturers began to cease production of sodium thiopental, and states had no choice but to look for an alternative.  The drug midazolam became the answer to many state’s problem, and chief plaintiff and defendant in the new case for this drug is Oklahoma.  Midazolam was used for the first time in the botched execution of Clayton Lockett in 2014, spawning cause for the litigation.

Oklahoma Attorney General Scott Pruitt told the Huffington Post in an email that all previous courts that tried the current case have found Oklahoma’s capital punishment to be constitutional.  One of the attorneys for the plaintiffs (all death row inmates in Oklahoma), Dale Baich, says that the aim of their case is not to eliminate capital punishment in total. Speaking on the matter Baich claims, “The case is a very narrow case.  We’re simply asking the U.S. Supreme Court to rule that states cannot use midazolam as part of the lethal injection protocol.”

While the court may possibly draw an opinion so broad and set a standard that all capital punishment is unconstitutional by violating the 8th Amendment citing cruel and unusual punishment, many experts say it does not fare well for the abolitionist.

Rick Halperin, human rights and death penalty expert from the Southern Methodist University, agreed that this case is too small and said, “The court is certainly, almost assuredly, not poised to strike down lethal injection as a method of execution. It’s never struck down any method of execution. The court is going to allow executions to continue.”

Indeed it can be cited in the past that the Supreme Court does rule very narrow on most cases, and does not allow for much future opinion to be taken out of the air.  Nevertheless, Halperin stated, “It took 17 years — from 1988 to 2005 — for the court to see that executing juvenile offenders was wrong. It took 13 years — from 1989 to 2002 — for a pro-death penalty Supreme Court to decide executing someone with mental disabilities is wrong,” Halperin said. “We’re now at a point where a lot of people can really see an end to this.”

 

-Curt Cramer (@CurtisRemarc)