Vox - Supreme Court decides on lethal injectionhttps://cdn.vox-cdn.com/community_logos/52517/voxv.png2015-06-29T14:50:02-04:00http://www.vox.com/rss/stream/86256242015-06-29T14:50:02-04:002015-06-29T14:50:02-04:00The Supreme Court's big death-penalty fight just exploded into the open
<figure>
<img alt="Gobbledy-gook." src="https://cdn.vox-cdn.com/thumbor/4Ta449KDzWD1ZCBccD8FQ-PatW8=/0x855:2298x2579/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46635298/GettyImages-128061867.0.0.jpg" />
<figcaption>Gobbledy-gook. | Alex Wong/Getty</figcaption>
</figure>
<p>The Supreme Court equivalent of a bar brawl erupted on the bench Monday, as the justices' ruling on a case that is technically about a lethal injection drug in Oklahoma got overshadowed by a heated side debate over the larger question of the <a href="http://www.vox.com/cards/death-penalty-capital-punishment" target="_blank">death penalty</a>, period.</p>
<p>In the case, <a target="_blank" href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs">Glossip v. Gross</a>, conservative justices voted 5–4 that Oklahoma is allowed to use a lethal injection drug that may cause a defendant severe pain. The decision in Monday's case, written by Justice Samuel Alito, was mostly about Oklahoma's drugs; so was the dissent, written by Justice Sonia Sotomayor.</p>
<p>But in a second dissent, liberal Justices Stephen Breyer and Ruth Bader Ginsburg said they want the Supreme Court to reconsider whether the death penalty is ever constitutional — a question the Court hasn't touched in<strong> </strong>40 years. The mere suggestion was enough to piss off Justices Antonin Scalia and Clarence Thomas, who both wrote concurring opinions with the majority just to respond to Breyer's argument. Furthermore, both Breyer and Scalia read their opinions out loud from the bench — even though neither one was the major opinion for their side. "That's extremely rare. In fact, I can't remember the last time it happened," said SCOTUSblog's Tejinder Singh.</p>
<p>The oral argument in this case was pretty heated itself — with Chief Justice John Roberts basically admonishing Justice Elena Kagan for talking too much. As another SCOTUSblog author wrote this morning, "There are some serious feelings going on here."</p>
<p>The bench fight probably doesn't mean the justices are about to formally take up the issue of the death penalty. But it does reveal a deep unease among liberals and conservatives about the way death-penalty cases proceed through the courts right now. That could mean the court is ready to consider deeper reforms. But they couldn't disagree more on what those might be.</p>
<h3>Breyer has changed his mind</h3>
<p>As recently as 2011, Justice Breyer told <a href="http://www.businessinsider.com/justice-breyer-riffs-on-the-death-penalty-citizens-united-bush-v-gore-2011-10">Business Insider</a> that it wasn't the Supreme Court's job to decide whether or not the death penalty is constitutional. "It is mostly imposed by state law, rarely federal law," he said. "Only the legislature can abolish the death penalty."</p>
<p>That's the result of a pair of cases from the 1970s — the last time the Supreme Court tackled capital punishment itself. In 1972, the Court banned the death penalty, saying the way it was then being practiced in the states constituted an "arbitrary punishment" that violated the 8th and 14th Amendments. In 1976, the Court ruled that states had fixed their death penalty policies, and states began executing prisoners again.</p>
<aside><q>"The circumstances and the evidence of the death penalty’s application have changed radically[...] it is now time to reopen the question"</q></aside>
<p>But Breyer has had concerns for years about how the death penalty is currently being practiced — in particular, the long (and lengthening) wait between when someone is sentenced to death and when he's executed. Now, he thinks the problems with the death penalty in practice are so bad that they prove states can't be trusted to regulate capital punishment fairly. As he said in his concurrence: "The circumstances and the evidence of the death penalty’s application have changed radically since then [1975]. Given those changes, I believe that it is now time to reopen the question."</p>
<p>This isn't just rhetoric. Breyer wants the Court to stop just hearing cases on individual death-penalty rules and defendants and hold a hearing on the constitutionality of the death penalty itself.</p>
<p>Justice Ruth Bader Ginsburg cosigned Breyer's call to reconsider the death penalty's constitutionality. But the other two liberals on the Court, Justice Sonia Sotomayor and Justice Elena Kagan, did not. (The main dissent in the case, written by Sotomayor, focused on Oklahoma's lethal-injection drugs — which it called <a href="http://www.vox.com/2015/6/29/8861307/death-penalty-supreme-court">"the chemical equivalent of being burned at the stake."</a>)</p>
<figure class="e-image">
<img alt="Death Penalty Gif" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/K5_8HvxUN2SkoEXbMioKVGVpV6s=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3736178/executionsbystate_9.09.51_AM.0.gif">
<figcaption>Pew Research Center</figcaption>
</figure>
<h3>Breyer's suggestion infuriated Scalia and Thomas</h3>
<p>Even though Breyer's concurring dissent wasn't the main dissent in the case and only represented two of the justices, it was so infuriating to the Court's conservative wing that both Justice Scalia and Justice Thomas wrote opinions of their own (and cosigned each other's) rebutting Breyer.</p>
<p>Scalia's opinion, even though it's technically on the majority side of the case, reads more like one of his dissents — it calls Breyer's opinion "full of internal contradictions and (it must be said) gobbledy-gook," and it accuses Breyer and Ginsburg of "rejecting the Enlightenment" by not allowing the people of each state to decide about capital punishment for themselves. It's a pretty broad attack on all of Breyer's arguments against the death penalty, but its fundamental point is that the Court simply doesn't have the authority to abolish it — which is exactly what Breyer was saying back in 2011. In fact, Scalia says, the real problem is that the Court has been overstepping its bounds on the death penalty for decades — by hearing case after case about whether the death penalty is constitutional against particular defendants (like the mentally handicapped) or by particular means (like Oklahoma's experimental execution drugs), etc.</p>
<aside><q>"His argument is full of internal contradictions and (it must be said) gobbeldy-gook"</q></aside>
<p>Justice Thomas focuses more on defending juries that sentence someone to death than states that allow it by law. But the argument is similar: the Court has already gone too far when it comes to death-penalty cases. In that respect, they actually share Breyer's basic premise: that the Court needs to stop tinkering around the edges with the death penalty.</p>
<p>Ironically, of course, this debate is happening in the secondary opinions of a case that is, at its heart, about tinkering around the edges: about a particular review of a drug combination in a particular state. So both supporters and opponents of the death penalty are showing they feel the Court has lost the forest for the trees and needs to be willing to tackle the question of the death penalty itself.</p>
<h3>Both sides are frustrated with how long it takes to resolve a death-penalty case</h3>
<p>It's not just that Breyer and Scalia agree that the death-penalty status quo is bad. They actually share a major complaint: because of a proliferation of appeals and delays, death-penalty cases take decades to resolve.</p>
<p>In 2012, the average execution happened nearly 16 years after the death sentence was handed down:</p>
<figure class="e-image">
<img alt="time on death row" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/4IHw8kMBhXLfaySyHJ8FUgN5skg=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3735320/Screen%20Shot%202015-05-28%20at%2012.39.01%20PM.png">
<cite><p>(Bureau of Justice Statistics via the <a href="http://www.deathpenaltyinfo.org/time-death-row">Death Penalty Information Center</a>)</p></cite>
</figure>
<p>The main reason for the delay is that prosecution and defense lawyers are engaged in an arms race. Each side races to get more and more experts involved in every stage of the process — from psychological evaluations to jury selection — and spends more and more time preparing for trials and appeals.</p>
<p>On one hand, a drawn-out legal process means that the defense has more opportunities to point out problems with the original trial or to find evidence that exonerates the defendant. So it's an important safety mechanism to ensure that the wrong person doesn't get executed. In fact, one of the big reasons that death-row inm<i>ates are more lik</i>ely to get exonerated than other inmates is that they have the benefit of a long legal process. But on the other hand, prisoners now spend decades on death row. That in and of itself, Breyer argues, is a harsh punishment. Furthermore, it's hard to argue that the death penalty deters anyone from committing a crime when it takes decades for crimes to be punished.</p>
<p>Breyer thinks that this is a no-win situation: "A death penalty system that seeks procedural fairness and reliability brings with it delays that severely aggravate the cruelty of capital punishment and significantly undermine the rationale for imposing a sentence of death in the first place." And it's a big reason he thinks that the death penalty might have been constitutional in 1975, but isn't constitutional today.</p>
<p>Scalia's biggest complaint, on the other hand, is that it's the Supreme Court's own fault that it's gotten into this position. Because of its cases looking at particular circumstances or applications of the death penalty, it's opened the door for every single death-row defendant to jump through a series of hoops before he has to be executed.</p>
<p>Because their diagnoses of the problems are so different, of course, it's not surprising that the justices disagree on what needs to be overturned. But all three of them end up arguing that the Court needs to rethink how it got here.</p>
<p>It's important to remember, as Ohio State University law professor Doug Berman pointed out to me in an interview earlier this month, that even when the Supreme Court isn't giving a full hearing to a death-penalty case, the justices still end up having to read and reject appeals — often multiple times — before the defendant is executed. So "they are the only individuals in the nation that make this life-and-death decision in every single death penalty case in the nation, and have to do so every time." Berman thinks that's part of the reason that death-penalty cases often get so heated on the Court; it's also probably a reason they are particularly annoyed with the long process between sentencing and execution.</p>
<h3>Does the Court have the votes to overturn the death penalty?</h3>
<p>So if Breyer and Ginsburg succeeded in getting the Supreme Court to consider whether capital punishment is constitutional, would they win? Almost certainly not. There's no indication that any of the five justices in the majority of the Oklahoma case think the death penalty violates the Eighth Amendment. And while Justices Sotomayor and Kagan might believe that, even they didn't sign onto Breyer's opinion — so they may disagree or simply not be ready to address the question.</p>
<p>The debate does prove something that observers saw in oral arguments in the Oklahoma case: the justices are deeply divided on the death penalty, and the split is getting pretty acrimonious. In previous cases, the feelings the justices have about the death penalty get compartmentalized into fights over the facts of the particular case at hand. That's what happened in the oral argument over this case and in the main opinions on both sides: Justice Sotomayor almost certainly has some feelings about Oklahoma's drugs.</p>
<p>But the older justices — Breyer, Ginsburg, Scalia, and Thomas (four of the oldest five justices on the court) — are impatient to bring the subtext out in the open. By doing so, what they've actually established is that there are at least four votes on the Court for a broader look at the death penalty — in particular, one that looks at whether the long delays are acceptable and whether it's more important to make absolutely sure that death-row inmates are guilty or to make sure that justice is served in a relatively swift fashion.</p>
<h3></h3>
https://www.vox.com/2015/6/29/8862805/death-penalty-supreme-court-breyerDara Lind2015-06-29T11:52:11-04:002015-06-29T11:52:11-04:00Justice Scalia: The death penalty deters crime. Experts: No, it doesn’t.
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/gmjS3lXZHVDZsg8-q4F4HO0V80g=/22x0:2983x2221/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46633996/GettyImages-485357615.0.jpg" />
<figcaption>Alex Wong/Getty Images</figcaption>
</figure>
<p>In upholding <a href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs">Oklahoma's use of a controversial lethal injection drug</a> on Monday, Justice Antonin Scalia wrote that it seems "very likely" to him that the death penalty deters crime, and he cherry-picked several studies in his defense. But what seems "very likely" to Scalia apparently doesn't seem so likely to criminologists and other experts who have studied this issue.</p>
<p>The <a href="http://www.deathpenaltyinfo.org/facts-about-deterrence-and-death-penalty">Death Penalty Information Center</a>, one of the top nonpartisan sources for information about capital punishment, summarized a <a href="http://www.deathpenaltyinfo.org/files/DeterrenceStudy2009.pdf">2009 survey</a> in which a large majority of criminologists said the death penalty isn't proven to deter homicides:</p>
<blockquote>
<p>Eighty-eight percent of the country's top criminologists do not believe the death penalty acts as a deterrent to homicide, according to a new study published in the <em>Journal of Criminal Law and Criminology </em>and authored by Professor Michael Radelet, Chair of the Department of Sociology at the University of Colorado-Boulder, and Traci Lacock, also at Boulder.</p>
<p>Similarly, 87% of the expert criminologists believe that abolition of the death penalty would not have any significant effect on murder rates. In addition, 75% of the respondents agree that "debates about the death penalty distract Congress and state legislatures from focusing on real solutions to crime problems."</p>
<p>The survey relied on questionnaires completed by the most pre-eminent criminologists in the country, including Fellows in the American Society of Criminology; winners of the American Society of Criminology's prestigious Southerland Award; and recent presidents of the American Society of Criminology. Respondents were not asked for their personal opinion about the death penalty, but instead to answer on the basis of their understandings of the empirical research.</p>
</blockquote>
<p>Part of the issue here is that the research on the death penalty's deterrent effect — including the studies that Scalia cited — is, frankly, terrible, because it's so difficult to pull out other mitigating factors that might contribute to crime. We know, for example, that states without the death penalty <a href="http://www.deathpenaltyinfo.org/deterrence-states-without-death-penalty-have-had-consistently-lower-murder-rates#stateswithvwithout">tend to have lower murder rates</a> than those with the death penalty. But how much of that is related to the death penalty, or the numerous other contributors to crime and homicide rates, such as socioeconomic issues or even the <a href="http://www.vox.com/cards/crime-rate-drop/lead-crime">amount of lead in gasoline</a>?</p>
<p>Still, the overall body of research suggests there is no deterrent effect. A February 2015 review of the research by the <a href="https://www.brennancenter.org/publication/what-caused-crime-decline">Brennan Center for Justice</a> found no evidence that the death penalty had an impact on crime in the 1990s and 2000s, and it concluded that the studies that suggested there was a deterrent effect were methodologically weak.</p>
<p>Why doesn't the death penalty pose a deterrent effect? One would think that a would-be killer would at least <em>consider</em> the possibility that he may be executed. But the Brennan Center for Justice report suggested that this misunderstand the thinking of most killers:</p>
<blockquote>
<p>[I]t is debatable whether an individual even engages in such objective calculations before committing a crime. Much psychological and sociological research suggests that many criminal acts are crimes of passion or committed in a heated moment based only on immediate circumstances, and thus potential offenders may not consider or weigh longer-term possibilities of punishment and capture, including the possibility of capital punishment.</p>
</blockquote>
<p>So Scalia may think it's "very likely" that the death penalty deters crime, and he may be able to find a few studies that suggest as much. But the criminologists and experts who have looked at the overall body of evidence have come to starkly different conclusions.</p>
https://www.vox.com/2015/6/29/8861727/antonin-scalia-death-penaltyGerman Lopez2015-06-29T11:32:15-04:002015-06-29T11:32:15-04:00Scalia says Breyer and Ginsburg's death penalty dissent "rejects the Enlightenment"
<figure>
<img alt="Justices Antonin Scalia and Ruth Bader Ginsburg" src="https://cdn.vox-cdn.com/thumbor/AbA8BaL2Fg1RD3LxGTYGmDr3tkc=/0x0:3000x2250/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46633922/GettyImages-485357525.0.0.jpg" />
<figcaption>Justices Antonin Scalia and Ruth Bader Ginsburg | Alex Wong/Getty</figcaption>
</figure>
<p>Justice Antonin Scalia got the ruling he wanted in <a href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs" target="_blank"><i>Glossip v. Gross</i></a>, the Supreme Court's death penalty decision that came down Monday — but he still felt the need to express his views in <a href="http://www.vox.com/2015/6/26/8851173/gay-marriage-supreme-court-scalia" target="_blank">his characteristic strongly-worded rhetoric</a>, this time aimed at two liberals on the court.</p>
<p>What annoyed Scalia so much wasn't the main dissent in the case, signed onto by all four of the court's liberals, but a separate dissent written by Justice Stephen Breyer and signed onto by Justice Ruth Bader Ginsburg. The two called on the Court to reassess whether the death penalty was constitutional at all, and said they had both come to believe that it "now likely constitutes a legally prohibited 'cruel and unusual punishment.'"</p>
<p>So Scalia <a target="_blank" href="http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf">wrote a separate concurrence</a>, joined by Justice Clarence Thomas, which said not only that Breyer was wrong, but that he was rejecting the entire Enlightenment:</p>
<p> <figure class="e-image">
<img alt="Scalia enlightenment" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/avM9HrbHcQpFYKW9Wu2y2q8B1hw=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3832250/Screen_Shot_2015-06-29_at_10.25.55_AM.0.png">
</figure>
</p>
<p>Scalia felt strongly enough that he decided to read his concurrence from the bench, which lawyer Tejinder Singh, a contributor to SCOTUSblog, <a href="http://www.scotusblog.com/2015/06/live-blog-of-orders-and-opinions-17/" target="_blank">wrote</a> was "exceedingly rare" for a concurring opinion, rather than a majority opinion or a dissent. (Update: <a href="http://www.slate.com/articles/news_and_politics/the_breakfast_table/features/2015/scotus_roundup/scalia_in_glossip_v_gross_supreme_court_decision_oklahoma_may_kill_using.html" target="_blank">Slate's Dahlia Lithwick reports</a> that what Scalia actually read "deviated from his written concurrence in some really odd ways.") <span>Read more about the new </span><a style="font-size: 19.5px; line-height: 32.1749992370606px; background-color: #ffffff;" href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs" target="_blank">death penalty ruling here</a><span>.</span></p>
https://www.vox.com/2015/6/29/8861455/death-penalty-supreme-court-scaliaAndrew Prokop2015-06-29T11:00:00-04:002015-06-29T11:00:00-04:00How a shortage of lethal injection drugs put the death penalty before the Supreme Court
<figure>
<img alt="An execution chamber." src="https://cdn.vox-cdn.com/thumbor/uqeiLHKDbsYGnUvLnCrj0TUgjvw=/19x0:1958x1454/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46158194/1304780.0.0.jpg" />
<figcaption>An execution chamber. | <a href='http://www.gettyimages.com'>Joe Raedle/Newsmakers via Getty Images</a></figcaption>
</figure>
<p>The Supreme Court on Monday <a href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs" target="_blank">decided</a> that Oklahoma may continue the use of the controversial sedative midazolam for lethal injections — even after the drug was linked to several botched executions in 2014.</p>
<p>The Supreme Court case dealt with the botched execution of Clayton Lockett in Oklahoma. The Lockett execution, which took 43 minutes after experimental lethal injection drugs were administered, led four inmates — one of whom was executed before the Supreme Court decided the issue — to file a lawsuit challenging Oklahoma's lethal injection protocol. The Supreme Court ultimately decided the botched execution, along with other evidence, wasn't adequate proof that midazolam was cruel and unusual punishment.</p>
<p>But Oklahoma didn't always use midazolam for executions. The use of the controversial sedative is actually a response to <span>an ongoing lethal injection drug shortage, which has left the future of the death penalty unclear in Utah, Oklahoma, Tennessee, and the 29 other states where executions are legal, and added a new angle to the perennial debate about the morality and effectiveness of capital punishment.</span></p>
<h3>European pharmaceutical companies are making it really hard to get lethal injection drugs</h3>
<p> <figure class="e-image">
<img alt="sodium thiopental" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/tFtehXDg2yVV4HLIGbPHZtVJzBA=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3548958/129375858.0.jpg">
</figure>
</p>
<p class="caption">A close-up of sodium thiopental in a tray. (Universal Images Group via Getty Images)</p>
<p>Over the past few years, a shortage of sodium thiopental, a key drug in lethal injections, has left states scrambling for alternative ways to execute prisoners and has inspired some to shroud the process in secrecy.</p>
<p>The shortage began around 2010, when drug suppliers around the world, including in the US, began refusing to supply drugs for the injections — out of either opposition to the death penalty or concerns about having their products associated with executions.</p>
<p>"The drugs were being cut off right and left," Deborah Denno, a death penalty expert at Fordham University, said.</p>
<p><q aria-hidden="true" class="right">"The drugs were being cut off right and left"</q></p>
<p>Hospira Inc. was the sole US supplier of sodium thiopental, according to <a href="http://georgetownlawjournal.org/articles/lethal-injection-chaos-post-baze/">Denno</a>. But Hospira stopped producing the drug in 2011, after struggling to procure active ingredients for its production and fielding legal threats from authorities in Italy, where the death penalty is vehemently opposed.</p>
<p>Some states still managed to import sodium thiopental from shadier overseas sources. But beginning in 2012, the US District Court of the District of Columbia issued several rulings banning imports of the drugs, deciding that the imported supplies didn't meet FDA regulations.</p>
<p>As the shortage continued, states turned to other European companies for alternative drugs, such as phenobarbital and propofol, that are typically used as sedatives for surgeries. But these companies — under pressure from a European Union <a href="http://www.theatlantic.com/international/archive/2014/02/can-europe-end-the-death-penalty-in-america/283790/">export ban</a>, activists like <a href="http://www.reprieve.org.uk/topic/death-penalty/">Reprieve</a>, and foreign governments that prohibit the death penalty — over time refused to supply the drugs.</p>
<p>As these companies either stopped supplying drugs or were unable to export to the US, states began to look for new — and sometimes untested — ways to execute prisoners.</p>
<h3>Loosely regulated compounding pharmacies made up for the shortage</h3>
<p> <figure class="e-image">
<img alt="compounding pharmacy" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/NftFUgPINldFD8PVx8Uou0MSq48=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3548962/1514021.0.jpg">
</figure>
</p>
<p class="caption">A compounding pharmacy in Louisiana. (Mario Villafuerte/Getty Images News)</p>
<p>With pharmaceutical companies out of the picture, states resorted to compounding pharmacies to make the drugs, which until now escaped <a href="http://www.bostonglobe.com/metro/2013/04/14/report-states-don-adequately-inspect-compounding-pharmacies-track-their-drugs/m5fFdlsDnZBY1x2VG2jWDN/story.html" target="_blank">most regulations</a> since they did small, mostly out-of-sight transactions with individuals, not major customers. The US-based pharmacies began to produce experimental, sometimes secretive cocktails for states' executions.</p>
<p>Compounding pharmacies were originally meant to make custom drugs for individual people, not major buyers like state governments, Denno said. As a result, their drug cocktails can often be very shoddy — Georgia stopped an execution because its lethal injection drug was <a href="http://www.latimes.com/nation/nationnow/la-na-nn-georgia-stops-planned-executions-20150303-story.html">"cloudy"</a> — and have been decried as experimental and dangerous by civil rights groups such as the <a href="http://www.vox.com/2014/12/17/7411149/death-penalty-bill-ohio">American Civil Liberties Union</a>.</p>
<p>But even compounding pharmacies may soon stop providing execution drugs to states. The <a href="http://c.ymcdn.com/sites/www.iacprx.org/resource/resmgr/Media/Press_Release_Compounding_fo.pdf">International Academy of Compounding Pharmacists</a> on March 24 announced that it "discourages its members from participating in the preparation, dispensing, or distribution of compounded medications for use in legally authorized executions."</p>
<p><q aria-hidden="true" class="center">Producing lethal injection drugs "is only going to invite further scrutiny"</q></p>
<p>The stance may be a way for compounding pharmacies, which are largely unregulated, to avoid the extra regulatory scrutiny that can come with producing lethal injection drugs. "These compounding pharmacies already have enough of a [public relations] issue," Denno said. Massachusetts, for instance, in 2014 <a href="http://www.reuters.com/article/2014/07/03/us-usa-massachusetts-meningitis-idUSKBN0F82J920140703">passed a law</a> cracking down on compounding pharmacies after a local company's drugs were implicated in the deaths of more than 60 people. Producing lethal injection drugs, Denno said, "is only going to invite further scrutiny."</p>
<p>But instead of stepping up regulations, some death penalty states have adopted measures to shield compounding pharmacies that provide lethal drugs from outside scrutiny.</p>
<p>In December, Ohio <a href="http://www.vox.com/2014/12/17/7411149/death-penalty-bill-ohio">passed</a> a law that will keep suppliers of lethal drug injections anonymous. John Murphy, executive director of the Ohio Prosecuting Attorneys Association, which supports the law, said last December that the changes are not meant to make the execution process more secretive. "This just protects the identity of the people involved so they don't get harassed, intimidated, or attacked," he said.</p>
<h3>Several states botched executions in the past year</h3>
<p> <figure class="e-image">
<img alt="death chamber Ohio" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/eKMJt2BuMy1EhRqqa55oijm_fx4=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/2648616/1609761.0.jpg">
</figure>
</p>
<p class="caption">A holding cell in Ohio. (Mike Simons/Getty Images News)</p>
<p>The drug shortage hasn't only led to concerns about market forces, regulations, and supply and demand. It's also raised important constitutional questions about cruel and unusual punishment, as the shortage has led some states to try experimental and unpredictable drugs for executions.</p>
<p>Since 2014, there have been several high-profile botched executions — described in gruesome detail in the press — all of which have involved secretive, experimental uses of midazolam.</p>
<p>Here are some of the cases:</p>
<ul>
<li> <a href="http://citybeat.com/cincinnati/article-29556-a_cruel_and_unusual_death.html">Dennis McGuire</a>, Ohio: McGuire took 26 minutes to die after the state used a mixture of hydromorphone and midazolam, according to the <a target="_blank" href="http://www.nytimes.com/2014/01/18/us/prolonged-execution-prompts-debate-over-death-penalty-methods.html">New York Times's Erica Goode</a>. McGuire gasped and snorted before he died.</li>
<li> <a href="http://www.vox.com/2014/4/29/5666680/why-oklahoma-tried-to-execute-a-man-with-a-secret-untested-mix-of">Clayton Lockett</a>, Oklahoma: Lockett struggled violently and groaned after the state injected a combination of midazolam, vecuronium bromide, and potassium chloride, the <a href="http://www.theguardian.com/world/2014/apr/30/oklahoma-execution-botched-clayton-lockett">Guardian's Katie Fretland</a> reported. State officials halted the execution, but Lockett died 43 minutes after the drugs were injected.</li>
<li> <a href="http://www.vox.com/2014/7/23/5931633/arizona-death-penalty-execution-joseph-wood">Joseph Wood</a>, Arizona: Wood took nearly two hours to die after the state used a mixture of hydromorphone and midazolam, according to the <a href="http://www.theguardian.com/world/2014/aug/02/arizona-inmate-injected-15-times-execution-drugs-joseph-wood">Guardian's Tom Dart</a>. Wood, who gasped and gulped before he died, was injected with 15 times the amounts called for in the state's execution protocol by the time he was pronounced dead.</li>
</ul>
<p>These botched executions drew criticism and put an unwanted spotlight on the use of experimental lethal drugs, which critics say is a violation of constitutional protections against cruel and unusual punishment. Some states, including <a href="http://www.vindy.com/news/2014/dec/11/ohio-prosecutor-chances-february-execution-nil/?nw">Ohio</a> and <a href="http://www.theguardian.com/us-news/2014/oct/13/oklahoma-delays-executions-again-days-after-unveiling-new-death-chamber">Oklahoma</a>, have delayed further executions as they review their practices.</p>
<p>Denno expects these problems to continue as states struggle to replace superior drugs like sodium thiopental. "Every time a state changes to a new drug, it introduces a degree of uncertainty," Denno said. "These drugs aren't the first choice."</p>
<h3>Untested drugs are dangerous, but botched executions aren't new</h3>
<p> <figure class="e-image">
<img alt="death chamber" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/MZ1qkR_0RW3v5vI6x53IW9ivcNo=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/2648948/1142322.0.jpg">
</figure>
</p>
<p class="caption">A death chamber in Indiana. (Scott Olson/Hulton Archive via Getty Images)</p>
<p>Botched executions have been around as long the death penalty. About 7 percent of lethal injections and 3 percent of all executions between 1890 and 2010 were botched, according to Austin Sarat's <a href="https://www.amherst.edu/aboutamherst/news/news_releases/node/539679"><em>Gruesome Spectacles</em></a>.</p>
<p>Part of the reason states began using lethal injection drugs is because the previously preferred method of execution for many states, electrocution, often had <a href="http://www.deathpenaltyinfo.org/some-examples-post-furman-botched-executions">horrifying results</a>, including the eruption of burned flesh and even live fires as prisoners gasped for air and slowly died.</p>
<p><q aria-hidden="true" class="right">"We have really incompetent people doing this"</q></p>
<p>But lethal injections carry problems beyond the drugs used for the procedures that may make them even more prone to being bungled. For one, most doctors — who are likely the most qualified to administer the deadly drugs — won't participate in executions because administering a deadly drug to kill someone would violate <a href="http://www.euthanasia.com/oathtext.html">professional ethics</a>. In 2010, the American Board of Anesthesiologists <a href="http://www.washingtonpost.com/wp-dyn/content/article/2010/05/01/AR2010050103190.html">voted to revoke</a> the certification of any member who participates in executing a prisoner.</p>
<p>As a result, states aren't typically able to bring in the best-trained doctors, particularly anesthesiologists, to administer drugs that are very dangerous when mishandled.<strong> </strong>"We have really incompetent people doing this," Denno said.</p>
<p>Perhaps as a result, lethal injection has always been one of the riskier forms of execution — even before the drug shortage forced states to experiment with alternative substances.</p>
<div>
<script type="text/javascript"><!--
window.pym || document.write( '<scr' + 'ipt src="http://apps.voxmedia.com/tools/javascripts/vendor/pym-cb3d02c4.js"></scr' + 'ipt>' );
// --></script>
<script type="text/javascript"><!--
var lethal_injections_are_the_riskiest_form_of_execution = new pym.Parent( "lethal_injections_are_the_riskiest_form_of_execution", "http://apps.voxmedia.com/tools/charts-public/?labels=Lethal%20injection%2CLethal%20gassing%2CHanging%2CElectrocution%2CFiring%20squad&datasets=7.12%2C5.4%2C3.12%2C1.92%2C0&title=Lethal%20injections%20are%20the%20riskiest%20form%20of%20execution&description=Percent%20of%20executions%20that%20were%20botched%2C%201900%20to%202010&source=Austin%20Sarat&link=http%3A%2F%2Fwww.amazon.com%2FGruesome-Spectacles-Botched-Executions-Americas%2Fdp%2F0804789169&type=bar&legend=", { xdomain: ".*.voxmedia.com" } );
// --></script>
</div>
<div id="lethal_injections_are_the_riskiest_form_of_execution"></div>
<p>In Oklahoma, the doctor and paramedic who participated in Clayton Lockett's botched execution said they received no training, the <a href="http://www.timesheraldonline.com/general-news/20141217/documents-reveal-new-details-of-oklahoma-execution" target="_blank">AP's Sean Murphy</a> reported. The execution team administered needles that weren't long enough for the procedure, and caused what a state official called a "bloody mess" when the doctor tried to set an IV line in Lockett's groin and blood gushed out.</p>
<p>In addition to physically botching an execution, it's always possible the state will execute an innocent person. An <a href="http://www.vox.com/2014/4/29/5664890/at-least-4-percent-of-death-sentences-false-convictions-innocent">April 2014 study</a> published in <em><a href="http://www.pnas.org/content/111/20/7230.abstract">PNAS</a></em>, a scientific journal, suggested that at least 4 percent of people sentenced to death in the US are likely innocent. At least six people were exonerated of death sentences in 2014, according to <a href="http://www.vox.com/2015/1/29/7932873/exonerations-2014">a January report</a> from the <a href="http://www.law.umich.edu/special/exoneration/Documents/Exonerations_in_2014_report.pdf">National Registry of Exonerations</a>.</p>
<h3>States are looking for other ways to execute people</h3>
<p> <figure class="e-image">
<img alt="death chamber" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/8VsEhnHDue7CDcClUFz30yJlpLI=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3548986/1609762.0.jpg">
</figure>
</p>
<p class="caption">A death chamber with an electric chair and gurney for lethal injections. (Mike Simons/Getty Images News)</p>
<p>So far, Denno of Fordham University has tracked three states that are moving toward alternatives to lethal injection should they run out of drugs. Tennessee <a href="http://www.cnn.com/2014/05/22/us/tennessee-executions/">reinstated</a> the possibility of the electric chair, Utah has <a href="http://hosted2.ap.org/WIMIL/a5050f4ad4f44dafab85bb41a15281cf/Article_2015-03-24-US--Utah-Firing%20Squad-QandA/id-843e06b23bca4187b9cc9f01269da53f" target="_blank">allowed</a> the firing squad again, and Oklahoma has <a href="http://www.nbcnews.com/storyline/lethal-injection/oklahoma-gov-mary-fallin-makes-nitrogen-gas-backup-execution-method-n343811" target="_blank">permitted</a> nitrogen gas.</p>
<p>These methods of executions were largely abandoned 50 years ago. After the Supreme Court <a href="https://utdeathpenalty.wordpress.com/history/">forced states</a> in 1972 to reform their execution procedures to be less racially discriminatory, states began mostly using lethal injections, as this fantastic chart posted by <a href="http://qz.com/346332/all-the-ways-america-has-chosen-to-execute-people-since-1776/">John West at Quartz</a> shows:</p>
<p><img src="https://cdn1.vox-cdn.com/uploads/chorus_asset/file/3541908/Quartz_death_penalty_chart.0.png"></p>
<p class="caption">(<a href="http://qz.com/346332/all-the-ways-america-has-chosen-to-execute-people-since-1776/">John West/Quartz</a>)</p>
<p>States could potentially seek out different drugs to continue using lethal injections and avoid execution methods that are widely seen as more gruesome. But states are also likely wary of repeating the same problems they've experienced with the current batch of drugs. "The same thing is going to happen," Denno said. "This has been a cycle: every time states have tried to do it, they've been cut off."</p>
<p>But many of the methods of execution that don't involve injected drugs have major problems.</p>
<p>Denno predicted gas executions will likely turn into "a disaster." She said gas has the same issues as lethal injection drugs: it's unclear where states would get the chemicals required for the executions, and whatever chemicals are used may not be suitable for a quick, relatively painless death. It also recalls ghastly memories of World War II, when the Nazis used gas chambers to kill prisoners in death camps.</p>
<p><q aria-hidden="true" class="center">The firing squad is "the quickest, the surest, and you have trained executioners to do it"</q></p>
<p>Electrocution and hanging were abandoned in the first place because they often resulted in botched executions. Electrocutions caused burned skin or live fires during multiple executions, and hangings could go very wrong when the rope broke or the prisoner was decapitated. Both can also take <a target="_blank" href="http://www.nbcnews.com/news/us-news/firing-squad-gas-chamber-how-long-executions-take-n329371">longer than 10 minutes</a> to kill a prisoner.</p>
<p>Denno argued the firing squad may turn out to be the most humane of the available options, even above lethal injections. "It's the quickest, the surest, and you have trained executioners to do it," she said.</p>
<p>Dunham, executive director of the <a href="http://www.deathpenaltyinfo.org/states-and-without-death-penalty">Death Penalty Information Center</a><span> </span>said states are dealing with the reality that there's no humane way of killing someone. "All the methods of execution have problems," Dunham said. "The involuntary termination of another person's life by execution is an inherently violent act."</p>
<p>Of course, states may be able to come up with another method entirely — or repeal the death penalty altogether. But at least for now, states appear to be sticking to the traditional ways of executing prisoners.</p>
<h3>Why the death penalty persists</h3>
<p> <figure class="e-image">
<img alt="execution chamber" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/XAUg_wAO1Th_EPkJQA-k0bQHG7M=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/2648668/1445502.0.jpg">
<cite>Per-Anders Pettersson/Liaison</cite>
</figure>
</p>
<p class="caption">A death chamber in Texas. (Per-Anders Pettersson/Hulton Archive via Getty Images)</p>
<p>Capital punishment persists through drug shortages and botched executions because it still has strong public support in the US, which puts pressure on lawmakers to find alternatives to lethal injection drugs rather than abolishing the death penalty in the 32 states where it's still legal.</p>
<p>America's support for the death penalty stands in sharp contrast with Europe, where only Belarus, a pro-Moscow dictatorship, still allows capital punishment.</p>
<p>An October 2014 <a href="http://www.gallup.com/poll/1606/death-penalty.aspx">Gallup poll</a> found 63 percent of Americans support the death penalty, while 33 percent oppose it.</p>
<center> <img src="https://cdn3.vox-cdn.com/uploads/chorus_asset/file/3541674/Gallup_death_penalty.0.png">
<p class="caption">(<a href="http://www.gallup.com/poll/1606/death-penalty.aspx">Gallup</a>)</p>
</center>
<p>Support for the death penalty gets a little more complicated when Americans are asked about specific methods of execution. <a href="http://www.nbcnews.com/storyline/lethal-injection/americans-back-death-penalty-gas-or-electrocution-if-no-needle-n105346">An NBC News poll</a> from May 2014 found nearly two-thirds of voters support alternatives to lethal injection if the needle isn't an option. But most US adults told <a href="https://today.yougov.com/news/2015/02/18/young-people-divided-death-penalty/">YouGov</a> in a February 2015 survey that the gas chamber, electric chair, firing squad, hanging, and beheading are cruel and unusual punishment, while lethal injection isn't.</p>
<p><img src="https://cdn1.vox-cdn.com/uploads/chorus_asset/file/3542428/YouGov_death_penalty_methods.0.png"></p>
<p class="caption">(<a href="https://today.yougov.com/news/2015/02/18/young-people-divided-death-penalty/">YouGov</a>)</p>
<p>Support for the death penalty also varies from state to state. Executions are much more culturally and legally ingrained in the South and, to a lesser extent, the West than in the rest of the country. Eighteen states have abolished the death penalty, most of which are in the Northeast and Midwest, according to the Death Penalty Information Center.</p>
<p><img src="https://cdn3.vox-cdn.com/uploads/chorus_asset/file/3541726/death_penalty_map-01.0.png"></p>
<p class="caption">(Anand Katakam/Vox)</p>
<p>So while popular support generally pressures lawmakers to find alternatives to lethal injections, that's not necessarily true in all parts of the country, and most US adults don't appear to support all methods of execution.</p>
<p>Regardless of what lawmakers do, the number of executions has been dropping for years. A <a href="http://www.vox.com/2014/12/18/7416173/death-penalty-low">report</a> from the <a href="http://www.deathpenaltyinfo.org/node/5989">Death Penalty Information Center</a> found the number of executions hit a 20-year low in 2014.</p>
<p>But even if that's the case, the death penalty as a whole remains very popular and culturally ingrained in the US — and that's led states to seek alternatives like experimental drugs, the firing squad, and nitrogen gas rather than abolishing executions altogether.</p>
https://www.vox.com/2015/3/27/8301357/death-penalty-lethal-injectionGerman Lopez2015-06-29T10:55:00-04:002015-06-29T10:55:00-04:004 percent of death sentences go to innocent people
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/9xjoU7-lAoSHgwMNXQgij_Nbnac=/0x3:2039x1532/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/32312985/103898508.0.jpg" />
</figure>
<p>At least 4 percent of people who receive death sentences in the United States are likely innocent, a 2014 study finds.</p>
<p><q class="right" aria-hidden="true">at least 4 percent of people who get death sentences at conviction are innocent</q></p>
<p><span>The paper, in the </span><i style="line-height: 1.5;">Proceedings of the National Academy of Sciences</i><span>,</span><i style="line-height: 1.5;"> </i><span>borrows a technique from biomedical research to estimate the number of prisoners sentenced to death who are falsely convicted. The study,</span><i style="line-height: 1.5;"> </i><span>by Samuel R. Gross of the University of Michigan and Barbara O'Brien of Michigan State University, finds that at least 4 percent of people who get sentenced to death when they're convicted would ultimately be exonerated if their cases were closely examined for the next 21 years. </span></p>
<p><span>That doesn't just include current death row inmates: many people who initially get death sentences end up getting their sentences reduced to life in prison. And no prisoner serving a life sentence gets the same level of scrutiny as someone on death row. For this reason, the authors conclude that the rate of false convictions in life-imprisonment cases is probably much higher.</span></p>
<h3>What the study says</h3>
<p><b></b>The reason the authors were able to estimate the number of innocent people with death sentences is that, for as long as someone's on death row, a lot of resources go into making absolutely sure he belongs there. So an innocent person on death row is much more likely to be exonerated than another innocent prisoner, even if it takes an average of ten years to do it. In fact, the authors say, it's possible that a majority of all innocent death-row prisoners are exonerated.</p>
<p><q class="left" aria-hidden="true">most prisoners originally sentenced to death get their sentences reduced to life in prison — their cases get less scrutiny</q></p>
<p>The problem is that most prisoners originally sentenced to death end up getting their sentences reduced to life in prison, and once that happens their cases don't get the same level of scrutiny anymore. So to estimate how many death-sentenced prisoners would be exonerated if they continued to get the higher level of scrutiny that they get while they're on death row, the authors borrowed a technique from biomedical research called "survival analysis."</p>
<p><span>In biology, the analysis gets used to estimate how many, say, Lyme disease sufferers would survive if a particular treatment were extended for a long time. For this study, instead of considering the possibility that someone would leave the Lyme-disease population by dying, the researchers looked at the possibility that someone would leave the death-row population by getting </span><i style="line-height: 1.5;">exonerated. </i><span>So instead of a "survival rate" and "death rate," as medical studies show, they found a "stayed-on-death-row rate" and an "exoneration rate," respectively.</span></p>
<p>The "exoneration rate" they found was 4.1 percent. That means that if everyone who got a death sentence when they were initially convicted got 21.4 years of high scrutiny for their cases, 4.1 percent of them would be exonerated by the end of that period.</p>
<h3>What the study means</h3>
<p>The authors say it's fair to consider 4.1 percent a very low estimate for the number of people sentenced to death who are wrongly convicted, since they assume it's more likely that there are other innocent defendants whose innocence was never discovered than guilty defendants who were wrongly exonerated.</p>
<p><q class="right" aria-hidden="true">the false conviction rate for death sentences is probably higher than 4 percent — for life sentences, it's probably even higher than that</q></p>
<p>The authors estimate that if every false death sentence resulted in an execution, 50 innocent people would have been executed in the last 35 years. But the actual number of innocents put to death is almost certainly a lot lower, because judges and prosecutors tend to reduce an inmate's sentence to life in prison if there's any doubt about his guilt. The flip side of that, however, is that the false conviction rate of people sentenced to life in prison to begin with is probably higher than the false conviction rate in death-penalty cases — especially because jurors tell researchers that the biggest factor in deciding to give someone a life sentence rather than a death sentence is lingering doubt that the defendant is guilty at all.</p>
<p>The authors conclude: "The great majority of innocent defendants who are convicted of capital murder in the United States are neither executed nor exonerated. They are sentenced, or resentenced to prison for life, and then forgotten."</p>
https://www.vox.com/2014/4/29/5664890/at-least-4-percent-of-death-sentences-false-convictions-innocentDara Lind2015-06-29T10:40:02-04:002015-06-29T10:40:02-04:00Sotomayor: OK’s lethal injections are “chemical equivalent of being burned at the stake"
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/y-SssS9mC4cVu6hacASCgTwV_JU=/0x234:3000x2484/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46633392/1609762.0.0.jpg" />
</figure>
<p>The Supreme Court, in a 5-4 decision, just <a href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs" target="_blank">allowed Oklahoma to keep using its experimental lethal-injection drugs</a> even though they could be leading to an extremely painful death. Justice Sonia Sotomayor, who wrote <a href="http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf" target="_blank">the dissent i</a>n the case for the court's liberal justices, thinks that this is what the decision amounts to:</p>
<blockquote>
<p>[I]t leaves petitioners exposed to what may well be the chemical equivalent of being burned at the stake.</p>
</blockquote>
<p>The conservative justices, led by Justice Samuel Alito, found that there was enough evidence that the drugs were safe to let the executions go forward. Sotomayor and the liberals, on the other hand, maintain that there's a scientific consensus that the drugs Oklahoma uses can't reliably knock someone out before killing him.</p>
<p></p>
<div data-analytics-category="article" data-analytics-action="link:related" class="chorus-snippet s-related">
<span class="s-related__title">Related</span> <a href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs" target="_blank">Explaining the Supreme Court's lethal-injection case</a><br>
</div>
<p> </p>
<p><br id="1435588646758"></p>
<p> </p>
<p>The conservatives also found that if the Oklahoma prisoners were so worried about the drugs the state is using, it was their job to come up with a safer method. That's impossible, or nearly impossible, since the reason Oklahoma and other states have been experimenting with lethal-injection drugs is that activists have successfully pressured drug companies to stop making the drugs that have traditionally been used to sedate prisoners before execution.</p>
<p>So the result of the Court's decision is that, because the safer options for lethal injection have been eliminated, prisoners will have to be subjected to the riskier options.</p>
https://www.vox.com/2015/6/29/8861307/death-penalty-supreme-courtDara Lind2015-06-29T10:25:02-04:002015-06-29T10:25:02-04:00Read: SCOTUS decision sides with Oklahoma on using experimental lethal injection drugs
<figure>
<img alt="" src="https://cdn.vox-cdn.com/thumbor/z76dEfCEPPIWbzRqLELLq3MdQZQ=/0x247:2999x2496/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46633338/GettyImages-92954621.0.jpg" />
<figcaption>Handout/Getty Images</figcaption>
</figure>
<p>Read our full explainer on the case <a href="http://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugs" target="new">here</a>.</p>
<ol>
<li>The US Supreme Court on Monday upheld the use of midazolam, a controversial lethal injection drug, saying that petitioners didn't adequately prove that it violated Eighth Amendment protections against cruel and unusual punishment.</li>
<li>The decision means states can continue using midazolam in their executions.</li>
<li>The case came about after Oklahoma botched the execution of Clayton Lockett, who appeared to groan and struggle for 43 minutes after the state injected him with lethal injection drugs.</li>
</ol>
<p>Read the full opinion here:</p>
<p><iframe frameborder="0" height="600" width="100%" id="doc_2174" scrolling="no" data-aspect-ratio="0.7729220222793488" data-auto-height="false" src="https://www.scribd.com/embeds/269971200/content?start_page=1&view_mode=scroll&access_key=key-BDnIRXk71a1BQKEl8eCJ&show_recommendations=true" class="scribd_iframe_embed"></iframe></p>
https://www.vox.com/2015/6/29/8861287/supreme-court-death-penalty-opinionDara LindGerman LopezTez Clark2015-06-29T10:20:00-04:002015-06-29T10:20:00-04:00Supreme Court upholds use of controversial lethal injection drug
<figure>
<img alt="Is it impossible to execute someone humanely via lethal injection right now?" src="https://cdn.vox-cdn.com/thumbor/nJQ5-jvqgfBfG-s9dBwmNpW0G38=/193x397:1779x1587/1310x983/cdn.vox-cdn.com/uploads/chorus_image/image/46510192/166222099.0.jpg" />
<figcaption>Is it impossible to execute someone humanely via lethal injection right now? | MCT via Getty Images</figcaption>
</figure>
<ol>
<li><span>The US Supreme Court on Monday <a target="_blank" href="http://www.supremecourt.gov/opinions/14pdf/14-7955_aplc.pdf">upheld</a> the use of midazolam, a controversial lethal injection drug — meaning states can continue using the drug in their executions.</span></li>
<li><span>In a 5-4 decision, the court concluded that petitioners didn't adequately prove that midazolam violates Eighth Amendment protections against cruel and unusual punishment.</span></li>
<li><span>The case came about after Oklahoma botched the execution of Clayton Lockett, who appeared to groan and struggle for 43 minutes after the state injected him with lethal injection drugs.</span></li>
</ol>
<h3>The origins of the case</h3>
<p>In 2014, it took the state of Oklahoma 43 minutes to execute<a target="_blank" href="http://www.vox.com/2014/4/29/5666680/why-oklahoma-tried-to-execute-a-man-with-a-secret-untested-mix-of"> Lockett</a>. Observers reported that Lockett "struggled violently, groaned, and writhed" for a few minutes after executioners started the injection. After 20 minutes, Lockett was still alive, and the state stopped pumping the execution drugs into his IV. Lockett died 43 minutes after his execution began.</p>
<p>The death penalty is constitutional in the US, as long as states use a method that is relatively safe and relatively painless. In recent years, it's become harder — and arguably impossible — for states to meet that standard. States have faced a drug shortage as pharmaceutical companies have pulled out of (or been banned from exporting to) the execution market. With reliable injections no longer available, states are flying blind, testing unproven combinations — drugs that might cause a lot of pain.</p>
<p></p>
<div data-analytics-category="article" data-analytics-action="link:related" class="chorus-snippet s-related">
<span class="s-related__title">Related</span> <a href="http://www.vox.com/2015/3/27/8301357/death-penalty-lethal-injection" target="_blank">Why there's an execution drug shortage</a> <a href="http://www.vox.com/2015/5/28/8681099/death-penalty-charts" target="_blank">The death penalty in America: expensive, racially skewed, and still popular</a><br>
</div>
<p><span>The Court weighed in on whether states ought to be allowed to use unproven drugs as necessary experimentation, or whether they've crossed the line into cruel and unusual punishment. They concluded that the plaintiffs didn't prove that midazolam crossed the line into cruel and unusual punishment, and states can use the drug despite several botched executions involving it.</span></p>
<h3>When does the death penalty count as "cruel and unusual punishment"?</h3>
<p>Lethal injection is <a target="_blank" href="http://www.vox.com/2015/5/28/8681099/death-penalty-charts">considered the most painless and humane way to kill someone</a>, but it's riskier than other forms of execution (including the firing squad and the electric chair).<strong> </strong>Prisoners have filed constant lawsuits over whether the risk from various methods of lethal injection is great enough that it constitutes cruel and unusual punishment under the Eighth Amendment.</p>
<div id="lethal_injection_is_the_riskiest_way_to_execute_someone"></div>
<p>
<script type="text/javascript"><!--
window.pym || document.write( '<scr' + 'ipt src="http://apps.voxmedia.com/tools/javascripts/vendor/pym-cb3d02c4.js"></scr' + 'ipt>' );
// --></script>
<script type="text/javascript"><!--
var lethal_injection_is_the_riskiest_way_to_execute_someone = new pym.Parent( "lethal_injection_is_the_riskiest_way_to_execute_someone", "http://apps.voxmedia.com/tools/charts-public/?labels=Botched%20executions%20(as%20%25%20of%20all%20executions)&datasets=1.92%7C3.12%7C7.12%7C5.4%7C0%7C3.15&title=Lethal%20injection%20is%20the%20riskiest%20way%20to%20execute%20someone&description=1900-2010&source=Austin%20Sarat%20via%20Wired%20UK&link=http%3A%2F%2Fwww.wired.co.uk%2Fnews%2Farchive%2F2014-05%2F13%2Fbotched-executions%2Fviewgallery%2F334551&type=bar&legend=Electrocution%2CHanging%2CLethal%20injection%2CGas%20chamber%2CFiring%20squad%2CAverage", { xdomain: ".*.voxmedia.com" } );
// --></script>
</p>
<p>The last time the Supreme Court ruled on the death penalty was in <em>Baze v. Rees, </em>a 2008 case about Kentucky's lethal injection method. In that decision, the Court said that an execution method would be considered "cruel and unusual punishment" if it created a "substantial risk" that the prisoner would suffer unnecessary pain. But, it said, Kentucky's method <em>didn't </em>cross that line. And at the time, Kentucky used the same method as most other states: an anesthetic called sodium thiopental to knock out the prisoner, then a combination of lethal drugs to kill him while he was unconscious.</p>
<p>Chief Justice Roberts's opinion was clear that the anesthetic was what made the execution un-cruel. If not enough anesthetic was given, Roberts wrote, there would be a substantial — and "constitutionally unacceptable" — risk of a painful execution from the other two common drugs.</p>
<p>Lower courts haven't figured out exactly what counts as a "substantial risk" of pain when killing someone. But for several years, they didn't really have to. Most states used the method the Supreme Court had already endorsed in <em>Baze. </em>Now that's changed — these days, the Court-endorsed method was thought to be pretty much impossible. But the Supreme Court apparently didn't believe midazolam crossed the line into posing a "substantial" risk of pain or cruel and unusual punishment.</p>
<h3>States now use experimental drug combinations to kill people</h3>
<p>Sodium thiopental — the anesthetic that Chief Justice Roberts wrote was the key to an un-cruel execution — has become increasingly difficult to get in the US, as an activist campaign to stop companies from making the death penalty drug has taken hold. American drug manufacturers have stopped making it and European laws have banned exporting it, so states haven't been able to get the anesthetic since 2011. (Vox's German Lopez has explained the <a target="_blank" href="http://www.vox.com/2015/3/27/8301357/death-penalty-lethal-injection">drug shortage</a>.)</p>
<figure class="e-image">
<img alt="midazolam" data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/dXYGbyVlN3MDt0PN_nVkZPVK8gY=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3832220/midazolam.0.png">
</figure>
<p class="caption">Midazolam, which many states are trying to use as an alternative to sodium thiopental, has been tested as an anti-seizure drug. It might not work as an anesthetic at all. (Tracy Woodward/Washington Post via Getty Images)</p>
<p>Since the drug only has a four-year shelf life, even states that had stocked up before the shortage hit are now being forced to find alternatives. Several of them have turned to a sedative called midazolam, which hasn't been approved for executions — and might not even work as an anesthetic at all. But many of the executions using new combinations of drugs — especially the ones involving midazolam — have gone disastrously, like the Lockett execution in Oklahoma. When someone is twitching and moaning on a gurney, as Lockett was, it seems plausible that he's in substantial pain. As the lawyers representing Oklahoma's current death row prisoners (who are the ones challenging the use of midazolam) wrote to the Supreme Court:</p>
<blockquote>
<p>A prisoner will suffer severe pain if midazolam is used as the sole agent to induce and maintain a deep comalike unconsciousness. If midazolam cannot reliably protect against the pain of surgery, it also cannot reliably protect against the agony of suffocation, paralysis, and "liquid fire."</p>
</blockquote>
<h3>Oklahoma kept using midazolam after a horrific, 43-minute execution</h3>
<p>Clayton Lockett's execution alarmed the public, and Oklahoma quickly put its executions on hold (including one that was scheduled to take place the same night as Lockett's) to figure out what had gone wrong. Other states have done the same thing after botched executions. But Oklahoma's investigation ultimately found that midazolam was still okay to use (it blamed improper placement of Lockett's IV for the botched execution instead).</p>
<p>So the state started up executions again, with a new execution chamber — but the same unproven drug.</p>
<p>In February, the Court agreed to take up the case of the three remaining inmates on Oklahoma's death row, who argued midazolam was too risky to be constitutional. There had originally been four inmates — the fourth had been executed the week before, after the justices denied his request for a last-minute stay.</p>
<p> <figure class="e-image">
<img alt="An execution chamber." data-mask-text="false" src="https://cdn.vox-cdn.com/thumbor/lmRXvcnrnCfal072tEgQ_bX9GZ0=/800x0/filters:no_upscale()/cdn.vox-cdn.com/uploads/chorus_asset/file/3619996/1304780.0.jpg">
<cite>Joe Raedle/Newsmakers via Getty Images</cite>
</figure>
</p>
<p class="caption">An execution chamber. (Joe Raedle/Newsmakers via Getty Images)</p>
<p>So why take up Oklahoma's case? Partly, experts said, because the way the state plowed forward after the Lockett execution raises concerns about whether Oklahoma actually cared about avoiding "significant risk" of pain in executions. "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,'" said Douglas Berman of Ohio State University. "That put off enough of the justices that they've wanted to really scrutinize what Oklahoma is doing."</p>
<p>But when the Supreme Court decided the case, it ultimately decided that there wasn't enough evidence to prohibit the use of midazolam.</p>
<h3>The Court's liberals think execution experimentation has gone on long enough</h3>
<p>The four justices on the Court's liberal wing — Stephen Breyer, Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan — are clearly concerned that the drug experimentation has reached a crisis point. (Two of them, Sotomayor and Kagan, weren't on the Court in 2008 for the <em>Baze </em>case, while Ginsburg dissented — so as many as three of them might disagree with the Court's current law on the death penalty, as well.)</p>
<p>All four voted to stay the February execution of Oklahoma's fourth death row prisoner. They're probably also the reason the Court looked at Oklahoma's method (only four justices need to agree to hear a case). And in oral arguments, they appeared sympathetic to the argument that Oklahoma, and perhaps other states, run a "substantial risk" of making prisoners suffer: Justice Kagan compared Oklahoma's method to burning someone at the stake. They're aware of the trouble states have had in finding execution drugs, but they don't appear to think that lets states off the hook for subjecting prisoners to cruel and unusual punishment.</p>
<p><q class="center" aria-hidden="true">CONSERVATIVE JUSTICES DON'T FEEL IT'S APPROPRIATE TO KEEP STATES THAT USE THE DEATH PENALTY FROM CARRYING OUT THEIR OWN LAWS</q></p>
<p>The conservative justices, meanwhile, feel anti-death penalty activists are being unfair. Instead of trying to attack the death penalty itself in court, the conservatives feel, activists are trying to abolish it by taking away states' options for executing people — what Justice Samuel Alito called "guerrilla war." The conservatives on the Court don't want to be in the business of micromanaging each state's execution methods. And they don't feel it's appropriate for them to help make it impossible for a state that uses the death penalty to actually carry out its own laws.</p>
<p>As a result, the conservatives don't appear to be pleased that the Court took the case up at all — making for an <a href="http://www.slate.com/articles/news_and_politics/supreme_court_dispatches/2015/04/glossip_v_gross_supreme_court_justices_argue_about_lethal_injection_abolition.2.html">unusually shouty oral argument</a> on both sides. In the conservative justices' opinion, the Supreme Court has ruled that the death penalty is constitutional as long as it's done humanely — and if the drug shortage has made it a lot harder to execute someone humanely, that is not the Court's problem to fix. But in Kagan's view, if states might be "burning people alive" with untested drugs, it's obviously a risk of cruel and unusual punishment and the Supreme Court obviously has to step in. And Oklahoma's actions have persuaded at least three others on the Court that they need to put an end to the era of experimentation.</p>
<h3>Experts expected the ruling to be limited</h3>
<p>Experts expected that all that rancor over the death penalty itself, and the role of the courts, wouldn't result in a broad or ideological opinion on the legitimacy of the death penalty — instead, they said the justices would probably stick to the case at hand in Oklahoma.</p>
<p>Ultimately, the court's opinion didn't address the broader issues of the death penalty. Instead, it simply continued the status quo — allowing states to continue the use of midazolam.</p>
https://www.vox.com/2015/6/10/8759275/glossip-lethal-injection-drugsDara LindGerman Lopez