WASHINGTON, April 29 (UPI) -- One year after an Oklahoma inmate writhed in pain during his execution, the U.S. Supreme Court is hearing arguments about whether the type of drug used in lethal injections across the country should be considered cruel and unusual punishment.
The Supreme Court's decision in Glossip v. Gross will decide whether midazolam, an anti-anxiety drug and depressant, violates the Eighth Amendment to the U.S. Constitution, which bans "cruel and unusual punishments." It's the first time the Supreme Court has revisited the issue of lethal injection since 2008, when justices upheld the use of a three-drug lethal-injection cocktail.
The case is of particular importance because midazolam has become the last-chance execution drug for many states. Beginning in about 2008, the pharmaceutical companies that make thiopental and pentobarbital -- the first choice in execution drugs -- cut back their availability for executions. Some states have been getting the first-choice drugs from compounding pharmacies instead, but supplies are running short. If midazolam is found unconstitutional, states may be forced to look to other methods of execution.
"Even if the court strikes down the use of midazolam and little more, the reverberations throughout the states will be significant," Deborah Denno, a law professor at Fordham University and an expert on lethal-injection, told the Wall Street Journal. "The simple fact is that states just don't have other drugs to use."
The argument centers on the botched execution of Clayton Lockett on April 29, 2014, in Oklahoma. Convicted of raping and murdering a 19-year-old woman in 2000, Lockett was administered midazolam instead of a barbiturate to induce a coma-like sleep. He survived for 43 minutes after the execution began. Since then, there have been other cases of botched executions using midazolam in Ohio and Arizona. However, Florida, the first to use midazolam in an execution, has used it many times without reports of adverse effects.
In 2014, Richard Glossip, a convicted murderer, and three other prisoners filed a lawsuit in Oklahoma to determine the constitutionality of midazolam, but it's likely the Supreme Court's decision will go beyond that.
"The justices take roughly 80 cases per year, and they hate to waste those cases by issuing opinions that do not give some general guidance to the world," Eric M. Freedman, a law professor at Hofstra University who lectures and writes about death penalty issues, told Bloomberg.
"It's possible that simply saying 'midazolam is no good' might not be good enough and that instead, they will offer that a good alternative to midazolam should have these specific characteristics."
According to the Death Penalty Information Center, 32 states have the death penalty. In March, Utah reauthorized the use of a firing squad if lethal injection is unavailable. In April, Oklahoma Gov. Mary Fallin authorized the use of nitrogen gas if lethal injection is struck down or the drugs are not available.