By Jennifer Li
In 2008, United States Supreme Court examined its first death penalty case on execution methods in decades when it upheld Kentucky’s lethal injection protocol in Baze v. Rees. In Baze, the Court held that the three-drug combination widely used in lethal injections across the country did not pose a “substantial” or “objectively intolerable” risk of harm that qualified as cruel or unusual when compared to available alternatives. Since 2008, however, most states have modified their lethal injection protocols by either substituting the drugs examined in Baze, or eliminating one or even two of the drugs altogether. The changes were spurred by drug shortages and challenges to states’ lethal injection protocols, factors that have also led many states to turn to compounding pharmacies – which are outside of FDA oversight – as well as secrecy laws that conceal state protocols from public knowledge. These changes to state practices have essentially rendered Baze moot.
Later this month, the Supreme Court will revisit the issue in Glossip v. Gross and review whether the use of the sedative midazolam violates the Eighth Amendment’s prohibition against cruel and unusual punishments. The case emerged out of Oklahoma, following the botched April 2014 execution of Clayton Lockett, an inmate who was administered midazolam and suffered for an excruciating 43 minutes before dying of a massive heart attack. On January 15, 2015, Charles Warner, another Oklahoma death row inmate and one of the original petitioners in the case – then called Warner v. Gross – was executed after the Court denied him a stay of execution. Days later, on January 23, 2015, the Court agreed to hear the appeal of the remaining petitioners challenging Oklahoma’s lethal injection protocol, and subsequently stayed the executions of the three remaining petitioners, Richard Glossip, John Grant and Benjamin Cole.
Professor Deborah Denno, Arthur A. McGivney Professor of Law at Fordham Law School, has written extensively on the death penalty and use of lethal injections, most recently in the Georgetown Law Journal, where she presented the results of an empirical study of over 300 cases that have cited Baze between 2008 and 2013. In the following edited interview, she discusses the death penalty, changes to lethal injection protocols since 2008 and the upcoming Supreme Court case, Glossip v. Gross.
JL: You have stated on many previous occasions that the death penalty and lethal injections are two very discrete issues, and that lawyers in particular should be careful to not muddy the waters by conflating the two. Can you explain why?
DD: It’s inevitable that discussions about the execution process are going to make us question why we even have a death penalty. It seems to have an impact on opinion polls, and it certainly has an impact on litigation as well as how people view the death penalty. From that perspective, any issue involving the execution process will make us reflect on the death penalty.
The reason I don’t like to conflate the two is because we’re a country that has always identified itself with having a death penalty. And if you’re going to have the death penalty and execute people, then that should be done in a humane way. But once the death penalty becomes conflated with the execution process, then the process itself gets lost in the shuffle. I think it hinders our ability to look at this process clearly when we start fogging it up with whether or not we should have the death penalty. I think there is a humane way of executing people; I just don’t think it’s by way of lethal injections. Firing squads would be more humane.
JL: In Baze, the Court only reviewed the three drugs that were being used in 2008: sodium thiopental, pancuronium bromide and potassium chloride. But the Court did not set a uniform standard across the country by limiting lethal injections to those three drugs. Do you think Glossip or any future cases will be able to address the current lack of consistency in lethal injections protocols?
DD: It may be possible that Glossip will set a safety standard for lethal injections, but I can’t see the Court applying a uniform standard to all states. There’s such a strong state’s rights issue, and there always has been with the death penalty.
In 2008, when Baze was decided, the use of other drugs outside of the three-drug protocol wasn’t even on the horizon. The Court wasn’t aware of the problem because there wasn’t even a thought that states would be going to other drugs. In Baze, one of the arguments was that states could just use one drug, not all three, and anesthesiologists in that case suggested that the best thing to do would be just to pump in a lot of sodium thiopental. As it turned out, Ohio went that route almost immediately, within months of the Baze decision.
JL: What propelled states to change their lethal injection protocols?
DD: One of the reasons that Ohio and other states modified their protocols was due to lethal injection challenges and concerns with the second drug, pancuronium bromide, which paralyzes the inmate. Everyone agrees that the sole reason that drug is used is so that people don’t twitch during the execution. I have interviewed Dr. Jay Chapman [who concocted the three-drug formula in 1977] at great length, and I asked him in three different ways and three different times about why he included the paralytic. He eventually conceded that it was for the benefit of the witnesses, for the people viewing the executions.
Although it may hasten death by just a little, it’s really the third drug, the potassium chloride, which induces cardiac arrest and causes death. So the only reason for having the paralytic is to paralyze a person so they don’t twitch around, for better optics – which is why a common misconception of lethal injection is that it induces a deep sleep. In reality, the inmate is sedated by the first drug, paralyzed by the second, and then induced into irreversible cardiac arrest by the third. And the third drug is horrifically painful. People have said it’s like putting a hot poker in your stomach.
JL: What is the standard for determining whether lethal injections constitute cruel and unusual punishment?
DD: Until Baze, the standard for executions was whether there was a heightened risk, a likelihood of wanton death, or cruel or painful death. Baze introduced some new strands to the Eighth Amendment. One, that it was incumbent – and this might be a focus of Glossip – on the attorney to show that there is an alternative, better method of execution. We’ll see if the Court chooses to address this argument in Glossip. The petitioners are questioning an interpretation of Baze that essentially imposed a burden on the defendant to come up with a better way of executing someone. The second matter raised in Glossip is whether a constitutionally-sound method would have to be substantially similar to the three-drug method presented before the Court in Baze. Currently, no state uses the three-drug method anymore because sodium thiopental is no longer available. In Baze, the Court also made it harder, actually, to show the severity of pain and harm to an inmate under the Eighth Amendment.
JL: Would midazolam satisfy the four-factor Furman test from the 1970s: whether the drug is degrading to human dignity; inflicted in an arbitrary fashion; totally rejected throughout society; and patently unnecessary?
DD: This is a great question. I think it’s safe to say that midazolam is a highly problematic drug to use in executions because it has been the source of some botches, and the circumstances of those botches are “degrading to human dignity.” Midazolam is also “inflicted in an arbitrary fashion” because it has been used only by some states, and in some executions, primarily because of its availability. Therefore, one could argue that it is “patently unnecessary” because states would prefer to use other drugs if they could access them – for example, sodium thiopental, pentobarbital, or even propofol. That said, midazolam has not been totally rejected throughout society because it is an approved anti-anxiety sedative that is used for medically-acceptable purposes. On the other hand, midazolam was not created for the purpose of executing human beings and there are many in the medical community and beyond who would “totally reject” its use in that context.
JL: What will the Court look at in the Glossip case this month?
DD: That’s hard to predict. It will probably be a narrow opinion and much of it will focus on Oklahoma’s selection and use of midazolam as the first drug in the state’s three-drug protocol. The second issue that might come up before the Court is also going to be pretty narrow – this question of whether defense attorneys have to come up with alternative methods, and what that means. The Court never actually explained that so-called requirement. Is the burden on the defendant to come up with an alternative method of execution?
JL: Even if the Court finds that midazolam isn’t a viable alternative drug to sodium thiopental, and that there are in fact no other alternative drugs to sodium thiopental, do you believe that it would still be unlikely for the Court to rule that lethal injections are now unconstitutional because there are no alternatives?
DD: I can’t imagine the Court rendering lethal injection generally unconstitutional. The Baze standard is whether the three-drug combination poses a substantial and objectively tolerable risk of serious harm compared to known and available alternatives. That’s a pretty high standard. And we aren’t able to run out and test these drugs on a hundred volunteers and conduct a survey on their level of pain before dying.
Battles of the experts rest on really fragile foundations, with experts coming in and projecting on how these drugs operate. In addition to the substantial risk standard that was used in Baze, in order to constitute an Eighth Amendment violation, a risk must be “sure or very likely to cause serious illness and needless suffering,” and give rise to “sufficiently imminent dangers.” That’s very bizarre language and it would be helpful for the Court to clarify it so that courts would have a greater opportunity to review some of these lethal injection protocols.
JL: In Baze, Chief Justice Roberts emphasized that the fact that one drug may be marginally better is not enough to satisfy the substantial risk requirement. But how different or similar must this alternative drug be to pose a substantial risk?
DD: I think that’s a great question and it would be helpful for the Court to clarify the meaning of “substantial similarity,” the language that the Court used in Baze. Interestingly, “substantial similarity” is not a criminal law or criminal procedure term. I was very surprised to see it when I first read Baze, and I later discovered that it’s an intellectual property term. For example, in the IP context, a question may be “is this drawing ‘substantially similar’ to the other drawing?” There is no precedent in determining what the term means outside of that context.
JL: With state secrecy provisions in place, how do we know which drugs each state actually uses?
DD: For the most part, we really don’t know. Usually, we discover facts through litigation. It was only because the Clayton Lockett execution was so terribly botched, for example, that we found out the details of how that execution was conducted – what drugs they used, how much was injected and who was participating. Journalists have also been very helpful about trying to uncover the manufacturer or the pharmacy involved in providing the drugs. Sometimes, journalists find out this information in indirect ways, for example when someone who’s close to the process reveals that kind of information to them. But it’s been difficult uncovering these secrets. We know that in a number of cases, departments of corrections have traveled across state lines to get a drug from a pharmacy which they then purchase with cash, thereby going to extreme lengths to cover up what they’re doing. And finally, there are some amazing human rights groups – for example, Reprieve in London – that eke out significant details about executions. But the discoveries are hit or miss, bits of pieces of information here and there.
JL: Can oversight and regulation come in the form of federal regulation of pharmacies?
DD: Despite states relying heavily on compounding pharmacies, they’re very lightly regulated. We may be seeing more changes and more federal regulation in the future but it hasn’t fully come into play yet. Even though information about the types and sources of lethal injection drugs is important for the public to know, states have been very successful with secrecy statutes. Georgia, for example, has a very tight secrecy statute, whereby the state can protect the identities of both the manufacturer and the pharmacy. And if states are protecting the manufacturer and the pharmacy, then they are hiding some very important components of the lethal injection process.
JL: What do you think the impact of Glossip will be on legal injection protocols and perhaps the death penalty, if any?
DD: We always want to know what influence a case like Glossip may have. But attempting to answer such a question is really like reading tea leaves. That said, just the mere act of the Court granting cert in Glossip can start to have reverberating effects on other kinds of decisions because it shows that the Court thinks the lethal injection issue is very important and that the Justices may want to change or clarify present practices. For example, both Oklahoma and Florida, which also uses midazolam, have held off all executions until the Court renders a decision in Glossip. Other states, such as Utah, have already adopted a fallback method of execution [the firing squad] in the likely event the state runs out of lethal injection drugs. The influence of a cert grant becomes all the more pronounced because the Court just handed down a decision concerning lethal injection [Baze] only seven years ago. Granting cert indicates that Baze has not been effective. There is also increased press attention and public discourse about the execution process. To sum up, the pending Supreme Court decision in Glossip will bear on one of this country’s most important governmental functions – the taking of a life – and what it says about us and our collective identity. We need to think about not only how we want other countries to perceive us, but also about how we want to perceive ourselves.
Jennifer Li is a Staff Writer for Rights Wire.