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Sean Philpott-Jones: A Glossip v Gross Injustice

After years of disappointment, political progressives like myself had a lot to cheer about this past week. The US Supreme Court, which in recent rulings has struck blows against organized labor and exempted some for-profit businesses from the contraception mandate of the Affordable Care Act, handed the left wing a number of stunning victories.

In King v. Burwell, for example, the Supreme Court upheld a key provision of the Affordable Care Act by allowing individuals who purchase insurance on the federal exchange rather than through state-run programs to receive taxpayer subsidies.  The Court also extended legal marriage nationwide to same-sex couples, and it allowed Arizona (and other states) to combat gerrymandering by establishing independent commissions to draw congressional and state legislative districts.

One important ruling that flew under the radar, however, was the Court's decision in Glossip v. Gross. By a 5-4 margin, the Justices upheld the use of a controversial sedative called midazolam for execution of death row inmates.

Lethal injection is the preferred method of execution in the 32 states that allow the death penalty. It is also the method used by the federal government. Until recently, the approach used for lethal injection has remained largely unchanged. Known as the Chapman protocol, after the method first proposed by Oklahoma’s state medical examiner Jay Chapman, it involves the use of three drugs.

First, a barbiturate like sodium thiopental is used to render condemned prisoners unconscious and pain free. A paralytic like pancuronium bromide is then used to immobilize the condemned prisoner and suppress respiration. Finally, potassium chloride is used to trigger cardiac arrest and stop the inmate's heart.

As I've written about before, there are numerous questions as to whether the Chapman protocol actually prevents the “unnecessary and wanton infliction of pain” required by the Eighth Amendment to the US Constitution. Despite this, the courts have repeatedly held that the use Chapman's three-drug execution method is constitutional, most recently in the 2008 US Supreme Court case of Baze v. Rees.

But states that allow lethal injection are now deviating from the Chapman protocol, the particular method of execution that was upheld in Baze v. Rees. This is largely because sodium thiopental and similar drugs (like sodium phenobarbital) are in increasingly short supply. The last US manufacturer stopped making the drug in 2011. That same year, imports from Europe halted after the European Union imposed a ban on export of drugs that can be used for capital punishment. Finally, in 2012, the federal government stopped the importation of sodium thiopental from the few remaining overseas manufacturers because those companies failed to meet US Food and Drug Administration (FDA) standards.

As a result, state-run corrections agencies are forced to use other sedatives to render condemned prisoners unconscious and insensate, such as midazolam. Four states -- Arizona, Florida, Ohio and Oklahoma -- currently use midazolam in their lethal injection protocol. Another state, Missouri, uses it as a sedative before the execution officially begins. The five other states that are actively engaged in the execution of death-row inmates do not use midazolam, but are considering it.

Midazolam itself has no analgesic or pain-relieving properties. It is only a sedative, and there are significant questions about how well it works in lethal injection protocols. In 2014, for instance, midazolam was used in a total in total of 15 executions. In three of those executions, despite being rendered unconscious initially, the condemned prisoners gasped for air, moaned, writhed and gritted their teeth in apparent pain during the administration of drugs to stop their hearts.

If, as these examples suggest, midazolam does not produce a sufficiently deep coma-like state to shield prisoners from pain, then its use would violate the Eighth Amendment’s prohibition against cruel and unusual punishment.  In fact, this was the basis of the plaintiffs' claims in Glossip v. Gross, supported by a friend of the court brief filed by a group of pharmacology professors. That brief unequivocally stated that there is “undisputed evidence that midazolam cannot reliably ensure the ‘deep, coma-like unconsciousness’ required where a State intends to cause death with painful drugs". This is also the reason why the FDA has not approved the use of midazolam as the sole drug to produce and maintain anesthesia during surgery.

Unfortunately that was not enough for the Supreme Court. Writing for the majority, Justice Samuel Alito stated that the three death-row inmates who brought the case failed to prove that midazolam doesn't alleviate excessive pain and failed to identify an alternative and acceptable method of execution.

In my view, this decision misses the point. The majority opinion willingly ignores a wealth of empirical data and anecdotal evidence that midazolam does not induce unconsciousness reliably. Moreover, the burden of proof shouldn't be on the plaintiffs. They shouldn't be required to demonstrate that use of midazolam for lethal injection creates an "objectively intolerable risk of harm." Rather, the state should be required to demonstrate that midazolam is capable of rendering an inmate completely unconscious and is thus appropriate for its intended purpose in lethal injection protocols.

Regardless of what you may think about the death penalty, the Eighth Amendment is quite clear. All prisoners, no matter how heinous their crimes, have the inalienable right to be free of “cruel and unusual punishments.” This includes guaranteeing that state-sanctioned executions are free of unnecessary and wanton pain.

A public health researcher and ethicist by training, Dr. Sean Philpott-Jones is Director of the Bioethics Program at Union Graduate College-Icahn School of Medicine at Mount Sinai in Schenectady, New York. He is also Director of Union Graduate College's Center for Bioethics and Clinical Leadership, and Project Director of its two NIH-funded research ethics training programs in Central and Eastern Europe and in the Caribbean Basin.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.

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