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The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.
The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014. Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes. It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.
Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate. But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.
Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional. They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US. Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.
1) Oklahoma messed up, but midazolam isn't necessarily a problem
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In a very narrow ruling, the Supreme Court could decide that Oklahoma erred in the way it administered lethal injection drugs — including midazolam — but that the drugs involved weren't necessarily a problem.
In 2008, the Supreme Court ruled in Baze v. Rees that Kentucky's three-drug protocol was constitutional. But Chief Justice John Roberts said that execution methods could be challenged if there's risk of severe pain that could be avoided through reasonable alternatives.
If the Supreme Court follows that standard with Oklahoma's case, it could decide that the state wasn't cautious enough before adopting and continuing its three-drug protocol with midazolam. "My sense was the very reason [the Court] granted certification was Oklahoma had this botched experience, spent time studying what went wrong, and then said, 'Well, we can't find anything that clearly showed it went wrong, so we're just going to keep doing it this way,'" Doug Berman, a professor at Ohio State University's Moritz College of Law, said. "That put off enough of the justices that they wanted to really scrutinize what Oklahoma is doing."
Depending on the specifics of the Supreme Court ruling, Oklahoma would have to adjust how it carries out executions. And other states could alter and strengthen their execution standards to ensure they don't face a challenge similar to Oklahoma's.
2) Midazolam is constitutional
The Court could address midazolam specifically, deeming its use constitutional. This would essentially continue the status quo, in which some states are still using midazolam, while others are trying other drugs like pentobarbital, and yet others are bringing back old methods of execution — such as the firing squad — to avoid issues with lethal injections.
If the Supreme Court deems midazolam constitutional, it's possible the court could set a clearer standard for the constitutionality of lethal injection drugs. Rob Dunham, executive director of the Death Penalty Information Center, described the standards set in Baze as "vague." "Everybody is waiting right now to see what guidance they get," he said. "But there hasn't been anything in the oral argument or the briefings that addresses the issue."
Even if midazolam is found to be constitutional, it very likely won't put an end to the legal challenges. "If they said that, you would expect that if there were some other botched execution, that could be brought up to the court again," Dunham said.
3) Midazolam is unconstitutional
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The most sweeping possible ruling would be a Supreme Court decision that midazolam is unconstitutional.
This ruling would prohibit Oklahoma and other states from using midazolam, although they could fall back on other drugs — like pentobarbital — to continue carrying out lethal injections. "It means that other drugs remain unchallenged," Dunham said.
4) Midazolam is unconstitutional as part of a three-drug protocol
A more narrow anti-midazolam ruling would be that the drug is unconstitutional as part of Oklahoma's specific three-drug protocol, because it doesn't prevent the pain and suffering brought on by the two other execution drugs. "It's the other drugs that cause the unconstitutional pain and suffering," Dunham said, "and midazolam doesn't adequately alleviate those effects."
As part of the ruling in Baze, Chief Justice Roberts said the one thing that made Kentucky's three-drug protocol constitutional was the use of sodium thiopental, the anesthetic previously used for executions before it stopped being available for the death penalty in the US. But if not enough anesthetic was given, Roberts wrote, there would be a "constitutionally unacceptable" risk of a painful execution from the other two common drugs.
The same standard could be applied to midazolam to decide that it's not a sufficient sedative, and therefore exposes someone to a constitutionally unacceptable risk of a painful execution.
5) Inmates have not proven midazolam leads to cruel and unusual punishment
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The Supreme Court could side with Oklahoma, ruling that inmates haven't proved that midazolam is what led to the botched execution of Lockett. This would keep the issues surrounding midazolam unresolved, and legal challenges could continue in an effort to prove midazolam is problematic.
6) Send the case back to a lower court
The Supreme Court could decide that not enough evidence has been brought to light by either side, and remand the case back to a lower court to litigate the full facts and science of the issue. "The court could say, 'We need to know more,'" Dunham said.
One reason this is possible, Dunham argued, is the key expert who argued in Oklahoma's favor during a district court hearing turned out to be not much of an expert. As ProPublica's Annie Waldman found, Roswell Evans, who testified that inmates "would not sense the pain" of an execution after receiving a high dose of midazolam, conducted a bulk of his research on Drugs.com, an online consumer website with a disclaimer that states, "Not intended for medical advice, diagnosis, or treatment." And other experts in the field have called Evans's testimony factually wrong.
As Waldman pointed out, at least one justice has already said she was troubled by Evans's research standards. "In contending that midazolam will work as the State intends, Dr. Evans cited no studies, but instead appeared to rely primarily on the Web site www.drugs.com," Justice Sonia Sotomayor wrote in a dissenting opinion to stay the execution of Charles Warner in Oklahoma in January. "It is true that we give deference to the district courts. But at some point, we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed. We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain."
If other justices agree, they could send the case back to district courts — and demand a more complete scientific review of midazolam.
