Earlier this week the United States Supreme Court upheld a ruling allowing the use of Midazolam, a drug that causes deep unconsciousness in those sentenced to death by lethal injection. Subsequent to Midazolam, a second and third injection are administered to cause paralysis and cardiac arrest respectively.
Midazolam was the common agent in at least three botched executions over the past several years.
Three death row inmates petitioned the court, claiming that executions in which this drug is administered violate the 8th Amendment’s ban on cruel and unusual punishment because it cannot reliably cause a deep, coma-like unconsciousness.
The ruling fell 5-4, with Justice Sotomayor penning the dissent. However, the most controversial dissent was led by Justice Breyer, in which he asks for further briefing on “whether the death penalty violates the constitution.” Justice Scalia sarcastically lashed back, welcoming readers to “Groundhog Day,” and reminding them that the justices, because of their high status, are unaware of the happenings in “Americans’ everyday lives.”
This is the first time that a Justice has openly questioned the constitutionality of the death penalty. Others, like late Justice Blackmun and Justice Stevens, made what seemed to be moral cases against the death penalty late in their careers.
In March, Utah governor Gary Herbert, signed back into law the firing squad as a method of execution. The last time a firing squad was used to execute a prisoner was in 2010 when Ronnie Lee Gardner chose to be put to death that way, consistent with his own weapon of choice. That execution consisted of five volunteer officers, each armed with a rifle. Of the five guns, only one is loaded with live ammunition, while the others with blanks.
Although three of the nine inmates now on Utah’s death row have elected to die by firing squad, the new law stipulates that the firing squad’s availability is contingent on the availability of the lethal injection drugs.