Yesterday the U.S. Supreme Court ruled that it's fine, constitutionally speaking, to execute inmates with the sedative midazolam, a drug that in some ways has become emblematic of the death penalty debate in America today.
Midazolam is the drug Oklahoma officials used in last year's botched execution of convicted murderer Clayton Lockett, a drug that some experts claim cannot produce the deep, coma-like state needed to ensure executions don't violate the Constitution's Eighth Amendment ban on cruel and unusual punishment. Up until last year, Oklahoma had used Texas's current death-drug of choice, pentobarbital, but as suppliers dried up, and unregulated compounding pharmacies faced increasing pressure to stop selling drugs for executions, Oklahoma couldn't get its hands on the stuff. Months before Lockett, who regained consciousness during his execution and took 43 minutes to die, was put to death, Oklahoma Department of Corrections deputies drove around the state in an unsuccessful attempt to find a pharmacy that would sell them pentobarbital.
Basically, given how tough it's become to get pentobarbital (Texas prison officials seem to announce a shortage of death drugs every few months or so), midazolam could be Texas' future, too (since multiple U.S. companies make the drug, it's much easier for state corrections officials to obtain).
Monday's 5-4 ruling upheld the use of midazolam for a couple of reasons. Writing for the majority, conservative Justice Samuel Alito said the condemned inmates challenging the drug failed to identify an alternative method of execution (under a previous court ruling, death row inmates challenging execution protocols are in the strange position of having to identify how they'd rather be killed). Secondly, Alito just didn't buy that using a massive dose of midazolam to kill someone constitutes a substantial risk of severe pain.
While the court upheld midazolam as an approved execution drug, in his dissent Justice Stephen Bryer cited two Texas cases as reasons to question the constitutionality of the death penalty entirely. Writing about the “serious unreliability” of the capital punishment, Bryer pointed to two Texas men who were, in all likelihood, executed for crimes they didn't commit.
In 2012, Columbia Human Rights Law review dedicated its entire spring edition, and doubled its normal size to more than 400 pages, to an investigation into the case of Carlos DeLuna. Until the day Texas executed him in 1989, DeLuna insisted another Carlos killed 24-year-old Wanda Lopez at a Corpus Christi gas station. Prosecutors at trial dismissed the idea, calling the other Carlos “a phantom” that didn't exist. Decades after his execution, Columbia University law professor James Liebman and a team of students found that other Carlos — Carlos Hernandez — and ultimately uncovered a trove of compelling evidence that DeLuna was, in fact, innocent. A website and book they later published about the case argues, with meticulous, shocking detail, that an innocent man was sent to his death.
In his dissent, Bryer also references the well-known case of Cameron Todd Willingham, who was executed in 2004 for the apparently-motiveless murder of his three children by setting his house on fire while they slept inside. The arson “science” used to convict Willingham was ultimately proven to be bogus, and earlier this year the State Bar of Texas formally accused the prosecutor in Willingham's case of misconduct, alleging he gave a star witness secret legal favors in exchange for helpful testimony.
Bryer points to research indicating that courts are 130 times more likely to exonerate a defendant when a death sentence is at issue, and nine times more likely to exonerate a convict in a capital murder case than a non-capital murder one. Why is that? Well, Bryer writes that maybe it has to do with the law governing capital cases being more complex, or perhaps the crimes at issue in these cases are so horrendous that there's enormous community pressure on police, prosecutors, and judges to get a conviction.
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But Bryer also alludes to the more general problem of flawed forensic testimony, such as the FBI's recent findings that flawed microscopic hair analysis was used in 33 or 35 capital cases under review by the bureau. Nine of those 33 defendants had already been executed. In the District of Columbia, which doesn't have the death penalty, five of seven defendants in flawed hair analysis cases were eventually exonerated.
For these reasons, Bryer urged the court to once again reconsider the constitutionality of the death penalty. Nearly 40 years ago the Supreme Court upheld capital punishment, saying that there are sufficient safeguards to ensure the death penalty is applied reasonably, reliably and not arbitrarily. “The circumstances and the evidence of the death penalty's application have changed radically since then,” Bryer wrote. “Given those changes, I believe that it is now time to reopen the question.”
You can read all of the opinions in the case here (Bryer's dissent begins on page 51):