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Are new drug combinations for lethal injections constitutional?

March 11, 2015

By Jeremy Quattlebaum, Student Voices staff writer,

As we wrote last year (Should states continue to use lethal injections for executions?), one of the three drugs used in executions by lethal injection is no longer available, leaving states to scramble to find a replacement. The drug, sodium thiopental, effectively sedated a person before the other drugs that stop the heart were administered.

An execution in Oklahoma in 2014 made it apparent that states were having a hard time finding a reliable solution. The execution of Clayton Lockett lasted 45 minutes. He ultimately died of a heart attack, not from the drugs. Executions in Florida have been conducted without incident, but executions in Ohio and Arkansas resulted in situations similar to that of Lockett.

Midazolam is the sedative that has been used since sodium thiopental was banned. According to medical professionals, if administered properly, the drug would render a person unconscious. If not administered properly, medical examiners indicate that it could lead to a conscious but paralyzed state, with death taking much longer than expected. After Lockett’s execution, Oklahoma officials increased the amount of midazolam used.

Facing a lethal injection that used midazolam, Richard Glossip and two other Oklahoma inmates filed a petition with the Supreme Court, challenging the constitutionality of the state’s method of lethal injection. Glossip said it no longer held up under the Eighth Amendment because the sedative used cannot reliably induce the level of unconsciousness required, exposing the inmate to intense suffering. The court decided to hear his case, Glossip v. Gross, putting a hold on his execution. Other governors and judges, both federal and state, have implemented moratoriums on executions until the high court rules.

The Eighth Amendment forbids the government from inflicting cruel and unusual punishment. In Baze v. Rees (2008), the Supreme Court established a set of protocols that included the three-drug combination for lethal injections. The majority opinion found that in order for states to administer the death penalty without violating the Eighth Amendment, they must properly administer the three-drug combination: A coma-like state must be induced before administering the two other drugs that stop the heart.

Since sodium thiopental is no longer available, Glossip is asking the court to reconsider applying the protocols established in Baze because the three-drug combination is different and it, too, must be reviewed.

Three main questions will be considered in determining the constitutionality of Oklahoma’s lethal injection method.

  • Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol when the first drug, the sedative, has been shown scientifically and empirically that it cannot reliably produce a coma-like state? If the first drug cannot induce a coma-like state, the drug must reduce the pain of the second and third drug to a constitutionally acceptable level.
  • Does the ruling in Baze v. Rees apply to current lethal injection methods since the primary sedative, sodium thiopental, is no longer available? By putting the inmate in a coma, the court ruled in Baze, the state did not violate the Eighth Amendment. Now that the drug is no longer available, do the protocols established in Baze still apply?
  • Is it up to the inmate to have to present alternative drug formulas if the state’s lethal injection protocol is found to be unconstitutional? This puts the burden on the inmate, who has to challenge the constitutionality of the lethal injection method and find acceptable alternatives.

Oklahoma officials defended its drug protocol in its Supreme Court briefing: “Oklahoma chose midazolam because the state has a sacred duty to enforce its criminal judgments, and the protocol pioneered by Florida represents the best available mechanism to carry out these judgments.”

Update: June 29, 2015: The Supreme Court decided, 5-4, that Oklahoma and other states can continue to execute inmates with a three-drug combination that includes midazolam. The majority opinion said the death-row inmates who brought the lawsuit had failed to identify an alternative method that had a lower risk of pain. It said there was no evidence that use of the three-drug combination constituted "cruel and unusual punishment."

What do you think?

Are the new lethal injection protocols constitutional? Now that the primary drug in Baze v. Rees is no longer available, should the protocol established still hold true? Is it up to the inmate to find alternative drugs for executions? Join the discussion and let us know what you think!
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Comments
9/21/2016
Elk Grove, CA
Rendan
Horizon Charter School
Does anyone know what Clayton Lockett was convicted of? He was convicted of murder, rape, kidnapping, and robbery. Besides, you dont get onto death row for a misdemeanor, you are put on for doing something really bad like raping and killing. People who rape and/or kill someone should have a painful death, to be honest. Them dying still doesnt compare to the grief they caused to the victims family and friends.

3/16/2016
Stroudsburg PA
Eryk D
Mr. Hanna
The new protocols for lethal injection is constitutional if they are administered correctly, otherwise, they could cause prolonged suffering which is unconstitutional. I believe that the three drug protocol should hold true as long as it is administrated properly and the inmate does not suffer during his death. No it should not be up to the inmate to find alternative drugs for executions, it should be up to the medical staff involved.

3/15/2016
Stroudsburg PA
Miada e
Mr Hanna/ Stroudsburg Junior Highschool
If you were an inmate about to get executed you probably have had to done something really bad, murder for example. I believe that they are constitutional only if they had committed a cruel crime. Lethal injection is a way to terminate the persons life, it should be painless and quick. Now that they cannot access sodium thiopental, they should try to find a drug that can fit into the three-drug combinations that make the inmate go into a coma-state. But I do not agree with he inmate trying to find s drug to fit into the combination. I believe that people in the medical ward should figure that part out, especially because there is physician assisted suicide that doctors can perform on patients that are terminally ill.

9/2/2015
sidney, montana
kyle mueller
Mr. Faulhaber
I agree that without sodium thiopental is necessary in the death penalty, but there is a replacement for that. The only argument against the replacement is that it doesnt work when not used properly. it works just fine if you have someone administering it that knows how to use it properly. In my opinion the death penalty is consitutional.

9/2/2015
Sidney, Montana
Quinn McGlothlin
Mr. Faulhaber
I think that the execution to the inmate should be quick and easy. They should not suffer during the execution, even though they may deserve it. I think that the lethal injection are unconstitutional.

9/1/2015
Sidney High School
Marlee Zentner
Mr.Faulhaber
I believe that the new lethal injection protocols are constitutional. It was found that to use the lethal injection without violating the eighth amendment that they much administer the three-drug combinations as long as that is being followed it is constitutional. The protocol should still remain true unless there figure out another way to put inmates to their deaths. I don't think it is up to the inmate to find an alternative drug. It should be up to certain doctors and scientist to figure out what will work best. Either way a inmate who has done such a horrible crime deserves what is to come to him. There are consequences to all actions.

6/7/2015
Stroudsburg
Harry
Mr. Hanna
I think that it is constitutional because it matters what crime the person commited to be ruled to suffer with the lethel injections. I think that if the person shows remorse for the crime that he could be over ruled by the court.

6/5/2015
Stroudsburg,Pennsylvania
Victoria Arce
Hanna/ Stroudsburg Junior High School
Well I think that it is depends on the crime if it is or isn't constitutional... For example, if you murdered someone you should get the same punishment as the person you killed. DEATH! But if you shoplifted and u only took like a can of soda or some gum you shouldn't get the dath penalty. So that is why it depends if lethal injection is constitutional or not.

6/5/2015
Stroudsburg PA
Justin
Mr. Hanna/ Stroudsburg JHS
Either way an execution is an execution. In order to earn one you have to commit a pretty harmful crime such as murder. However it is cruel to have a criminal suffer during his execution and feel unmarkable pain, they deserve it For taking a life. I think a new drug is constitutional so that they don't have to suffer if prefer them not but if they have to then they have to because they did something to deserve it. A new drug will not guarantee that it will numb the pain of the other two drugs but it will still get the job done.

6/5/2015
Stroudsburg/ PA
Demari
Mr. Hanna/Stroudsburg jr high
The new lethal injection protocols are not constitutional because it has not been shown scientifically that the sedative can produce a coma like state and without a proper sedative it would be unjust or cruel punishment. The protocol established should not be held true until a proper alternative is found. No an inmate should not be responsible for finding the alternative drug to the cause of his death because he is not the one that sentenced himself.

6/4/2015
Stroudsburg, PA
Gabriel
Mr. Hanna/Stroudsburg JHS
The new lethal injection protocol I think should be ruled unconstitutional for a number of reasons. One of the many reasons is that even though scientists could find out a new way to sedate the criminal and make them fall asleep, the scientists could mess up on the mixing process of making the knock-out drug and could accidentally make it so that the drug could awaken the criminal just before or when the lethal injection is taking place, causing them to feel the pain before dying thanks to the lethal injection. If scientists also want to take the lethal injection to another level and make new lethal injection, that is an entirely different story. I don't think that, however, would be approved by Congress.

6/4/2015
Stroudsburg/PA
Adam
Mr.Hanna/sjhs
It depends on what it does and the sideeffects. But if it is dangerous and/or for illegal use. Even though it can go both ways. It might be able to be used for medical use.

6/4/2015
Stroudsburg/PA
Adam
Mr.Hanna/sjhs
It depends on what it does and the sideeffects. But if it is dangerous and/or for illegal use. Even though it can go both ways. It might be able to be used for medical use.

6/4/2015
Stroudsburg, Pennsylvania
Javier
Mr. Hanna/Stroudsburg Junior High School
Yes it should constitutional because if you break the law of murder you should be announced to capital punishment they shouldn't be punished by hurting physically and just kill them instantly with lethal injection.

6/4/2015
Stroudsburg/Pennslyvania
Luke
Mr. Hanna/SJHS
NO! I dont care what any one else says, if it's the public or the police or whatever. Lethal injections are not constitutional. They are classified as an cruel and unusual punishment. No matter what this article says! We should not be doing it, that goes for you too government officials. Lethal injections are not right.

6/4/2015
Stroudsburg,PA
Sherri
Mr. Hanna/Stroudsburg junior high school
I think lethal injections are bad in this country because it is like you are killing someone. Also I think lethal injections are bad is because it is injecting stuff that kills people. If people put things in other people that is not medicine that person is a killer because you don't always know what you are putting in yourself or other people.

6/4/2015
Stroudsburg, PA
annika
Me. Hanna / Stroudsburg JHS
I think that the use of a drug that is proven not to actually knock out the person and put them in an unconscious state before administering the next two drugs is unconstitutional. If the knock out drug doesn't work, the person will feel all the pain of having their heart stopped. Now I'm not saying that lethal injections are unconstitutional, just the drug changes for the lethal injections, considering they allow the person to feel all the pain. That's a bit harsh no matter what the criminal did.

6/4/2015
Stroudsburg, PA
Danny
Mr. Hanna/ Stroudsburg JHS
I think the new lethal injection protocols are constitutional. If someone is even at question for a lethal injection they obviously did something very wrong. I think the three drug combination is good if it works. I don't think the person should suffer unless they made someone suffer. I think the government should find a new lethal drug and give it to every state to use in there injections.

6/4/2015
Stroudsburg, PA
Joshua
Mr.Hanna / Stroudsburg JHS
The new lethal injection protocols are constitutional because it allows no suffering even if the death is quick. The case Baze vs. Rees should not affect the protocol that is established. If the inmate wishes to have a different drug that kills them then their wish should be granted.

6/4/2015
Stroudsburg/PA
Valeria
Hanna/ Stroudsburg JHS
The new lethal injection protocols are unconstitutional. I believe this because if it hurt one inmate already then we should know that it might hurt another one. I believe this new sedative should have been tested before they started using it on inmates. It is unconstitutional since it cause one inmate pain, the law says were not aloud to inflict pain on them so we're technically breaking it. Since the drug we used to use is no longer available then the protocol doesnt hold true. The original drug prevented the inmate from feeling any kind of pain. This new drug has caused pain before so the protocol was broken and its not true anymore. I also think that it shouldnt be up to the inmate to find alternative drugs for executions because they might get one that doesnt work or has something like drugs in it. I believe experts should be the ones looking this drug up and finding it. Lastly it should definitely be tested beforehand.

4/20/2015
Murrieta/California
Derek C
Jabro/Creekside
Yes i think they should continue to use lethal injections to execute. Because things like the electric chair and other means of accomplishing the same thing re behind us and also can be deemed cruel and unusual punishment by some. Testing new drug combinations are constitutional i believe yes. Why would they not be? There is no law that states against it and nothing that vaguely hints that it might be unconstitutional so why not. if it makes the execution less painful for the one being executed then i think it should at least be considered.

3/22/2015
Irving/Texas
David
Bradley/Nimitz
I don’t think the new lethal injection protocols are constitutional because they still allow for the use of the 3-drug protocol as long as the 1st drug reduces the pain induced from the 2nd and 3rd drugs; there shouldn't be any pain at all. Under the 8th amendment, the government is not allowed to constitutionally administer any cruel or unusual punishments, and suffering of any kind to induce death is definitely cruel. Since the primary drug in Baze v. Rees is no longer available, the protocol established should still hold true, but with a new drug found in order to replace it; again, whoever is sentenced to death should have the right to die peacefully without suffering, as the 45 minute death described in Oklahoma is completely immoral. The inmate shouldn't be responsible for finding alternative drugs for execution, but they should have a say. To say that a person MUST choose what will kill them is a little odd, but it’s fair to reassure them that a certain drug will make them unconscious so they won’t have to experience a slow and painful death. If anything, the government should be responsible for finding alternative drugs as it is the law that is being reinforced through the death penalty and how it is carried out.

3/20/2015
Murrieta CA
Alexander Walton
Jabro Creekside High Scool
I believe that they should not be allowed to administer a drug that has been proven to be not strong enough. I also believe that the court should reconsider and review the new three drug combination since it is now different. they need to make the drug stronger and it should be tested to see if they can successfully administer the drug according to the eight amendment or come up with an alternative drug to use. I don't believe that it should be the inmates responsibility to find an alternative drug. it should be the states responsibility.

Related News
1/23/2015
Glossip v. Gross
Oyez.org


Baze v. Rees
Legal Information Institute, Cornell University

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