By Gabrielle Simeck ’18

In recent years, capital punishment has become a contentious issue in the United States due to lethal injection drug shortages and international pressure  to shelf in the institution as a whole. Both the UK and all European Union member-states have outlawed the death penalty and the export of lethal injection drugs to the United States for execution purposes. As a result, state governments have been under extreme pressure to locate and acquire drugs necessary for lethal injection procedures. Lethal injection became the preferred method of execution in the 1990s in large part to its reputation for painlessness. However, following a series of botched lethal injections in Oklahoma, Ohio, and Arizona over the past two years, the formerly pristine reputation of lethal injection is beginning to erode. Although SCOTUS has repeatedly upheld capital punishment as constitutional since the 1970s, new legal challenges have begun to undermine the execution method of choice: lethal injection.


In 2015, the Supreme Court accepted its first case on capital punishment since 2007. In a 5-4 decision, the court upheld Oklahoma’s lethal injection practices in June 2015. The case, Glossip v Gross, brought forward by a group of Oklahoma death row prisoners, argued that a drug used in lethal injection would cause immense amounts of pain during execution. In the majority opinion, Justice Samuel Alito wrote, “[f]irst, the prisoners failed to identify a known and available alternative method of execution that entails a lesser risk of pain, a requirement of all Eighth Amendment method-of execution claims. […] Second, the District Court did not commit clear error when it found that the prisoners failed to establish that Oklahoma’s use of a massive dose of midazolam in its execution protocol entails a substantial risk of severe pain.” The majority’s ruling involves a key intersection between capital punishment legislation and constitutional law. Typically, lawyers seek to challenge the constitutionality of capital punishment by invoking the “cruel and unusual punishment” clause of the Eighth Amendment. However, to do so successfully, the case attorneys must provide an alternative punishment method as well as prove that the execution practices cause inhumane amounts of pain. According to the majority, these two conditions were not met and, thus, the court upheld lethal injection as a humane method of execution.


In contrast to the majority, the four dissenting justices claimed that the death-row inmates were facing an unconstitutional punishment. In her dissent, Justice Sonia Sotomayer described the majority ruling’s limitations, writing that it “leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.” According to NPR’s Nina Totemberg, Justice Sotomayer argued that under the majority’s ruling, “it would not matter if the prisoner was being ‘drawn and quartered, slowly tortured to death, or actually burned at the stake,’ as long as there was no more humane method of execution available. The Constitution’s ban on cruel and unusual punishment does not permit that.” Justice Sotomayer’s dissent was joined by Justices Ruth Bader Ginsberg, Elena Kagan, and Stephen Breyer.


As SCOTUS re-evaluated the constitutionality of lethal injection from a federal perspective, individual state governments have also been seeking new alternatives to the three-drug method. Most recently, California state officials proposed a new lethal injection protocol. Under the new proposal, any one of four barbiturates — amobarbital, pentobarbital, secobarbital, and thiopental — will be able to be used in lethal injection procedures. The drugs are commonly used to euthanize dogs and other animals. Unlike the other drugs, thiopental was frequently used as part of the three-drug protocol.


Whether it’s the Supreme Court or individual state legislatures, both federal and state government officials are considering how to implement capital punishment in the 21st century. For now, SCOTUS continues to uphold the death penalty as constitutional, and 32 state constitutions support the practice. However, shortages of lethal injection drugs have made executions far more difficult to carry out. Perhaps these consequences will force our country to expand the dialogue regarding capital punishment and consider, as Justice Breyer asserted in his dissent in Glossip v Gross, whether the “death penalty, in and of itself, now likely constitutes a legally prohibited ‘cruel and unusual punishment.”