By Charles McGonigal
The death penalty is the government’s deepest moral quagmire. An execution is irrevocable and heavily resembles the crimes that it punishes. To make peace with this decision, society deploys resources to try to avoid executing innocents (due process, defense counsel, mandatory appeals) and to distinguish it from homicide. One of the most important differentiators has been to make the execution as humane as possible, embodied in the Eighth Amendment’s prohibition of cruel and unusual punishment. Until Glossip v. Gross.
In 2008’s Baze v. Rees, the Supreme Court allowed a specific three-drug protocol that put the victim into a coma before administering the killing drugs. The likelihood that the protocol would prevent suffering was very high, indeed high enough to satisfy the Eighth Amendment. The Court held that petitioners challenging such a satisfactory method had to offer a means of further increasing that likelihood. However, market pressures later caused the supplier of the anesthetic sodium thiopental—the first drug of the protocol—to stop providing it for executions, so some states (including Oklahoma) switched their protocols to use the sedative midazolam, which is not FDA-approved for sole use as an anesthetic. While midazolam does help patients fall asleep, the patients are usually awakened by significant trauma like incisions or burning chemicals designed to stop the heart.
Glossip v. Gross challenged Oklahoma’s execution protocol on the grounds that midazolam would not sufficiently prevent the executed from suffering during the execution. The prisoners’ suit was dismissed both on the merits and because they had not proposed an alternative. The Supreme Court affirmed both bases. Specifically, the risk of midazolam causing the victim to suffer was found to be not substantial “compared to a known and available alternative method of execution.” Rather than applying the alternative-method rule only to methods meeting the Eighth Amendment standard, the state’s right to execute now supersedes the Eighth Amendment, so death row inmates bear the burden of finding and proving non-cruel execution methods.
Capital punishment is constitutionally allowable (although Justice Breyer’s dissent offers compelling reasons to revisit that assessment), but not mandated. The government is not compelled to kill prisoners, and no individuals have ever been compelled to specifically assist or provide resources. Constitutional limitations control all government actions, including executions – those limitations should not be restricted to accommodate a particular action. But the Supreme Court holds that the state must be able to execute prisoners, and if society denies it the resources to satisfy the Eighth Amendment, cruel punishments may become usual.