{"id":1985,"date":"2015-06-07T19:13:24","date_gmt":"2015-06-07T19:13:24","guid":{"rendered":"https:\/\/live-journal-of-law-and-public-policy.pantheonsite.io\/?p=1985"},"modified":"2015-06-07T19:13:24","modified_gmt":"2015-06-07T19:13:24","slug":"veni-vidi-vici-or-not-so-much-vici-midazalom-and-the-supreme-court","status":"publish","type":"post","link":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/2015\/06\/07\/veni-vidi-vici-or-not-so-much-vici-midazalom-and-the-supreme-court\/","title":{"rendered":"Veni, Vidi, Vici- or not so much Vici: Midazalom and the Supreme Court"},"content":{"rendered":"I rarely want to write a follow-up on a post<\/a>, but this one was too interesting to pass up.[1] On April 29, the Supreme Court heard oral argument<\/a> in Glossip v. Gross<\/em><\/a> and considered the constitutionality of the Oklahoma drug protocol using midazolam. The argument focused quite a bit on the technical aspects of the administration of midazolam, but it did not lack exciting moments.\n\nOne of my favorite moments, which also received the majority of the press\u2019s attention<\/a>, was when Justices Scalia and Alito talked about a \u201cguerilla war against the death penalty,\u201d<\/a> which makes it impossible for the states to obtain capital punishment drugs, other than midazolam, so why is it, the two justices asked, that the same abolitionists claim that the use of midazolam is unconstitutional. Also, of course, when Justice Sotomayor told the Oklahoma Solicitor General Patrick Wyrick \u201cnothing you say or read to me am I going to believe, frankly, until I see it with my own eyes in context,\u201d<\/a> after pointing out that Oklahoma had made factual assertions in their brief that were not supported by the cited sources.\n\nFirst things first, and a hypothetical cram down of the votes is in order. No surprises there. Justices Kagan, Sotomayor, Ginsburg, and Breyer seem to be ready to say that the Oklahoma drug protocol is unconstitutional; Justices Scalia, Alito, Thomas (as per usual Justice Thomas remained silent during the oral argument), and Chief Justice Roberts appeared to be on the opposite side; and, once again, it all comes down to Justice Kennedy\u2019s vote. However, Justice Kennedy didn\u2019t say a whole lot during the argument. He did join the conservative wing of the court insisting that Ms. Konrad answer the question \u201cwhat bearing, if any, the Court should give to the fact that there is [another] method, but that it\u2019s not available because of opposition to the death penalty? \u2026 None?\u201d Other than that, he didn\u2019t say much. In addition, one cannot read too much into the fact that he was in the majority in Baze v. Rees<\/em><\/a>. Therefore, it is hard to predict which way the Court is going to rule.\n\nBack to the most talkative Justices\u2019 questions and the answers they received, I frankly cannot see how the efforts of the abolitionists have any bearing on whether a lethal injection drug protocol is constitutional under the Eighth Amendment. Evidence suggests, and petitioners argued, that Midazolam does not have the required pain relieving properties and its use bears a constitutionally unacceptable risk of pain. As Justice Kagan pointed out, if the execution does not go properly and Midazolam is ineffective in creating the coma-like state it is supposed to create, then when the potassium chloride is administered to stop the inmate\u2019s heart, \u201cit gives the feeling of being burned alive.\u201d Let\u2019s not forget that when Michael Lee Wilson<\/a> was executed in January 2014, twenty seconds after the execution started, his last words were \u201cI can feel my whole body burning.\u201d\n\nThese are facts; facts that support the legal claim that drug protocols using Midazolam are unconstitutional. How these facts came to be is completely irrelevant. Is it the efforts of the abolitionists that have made other drugs unavailable? More power to them. Is the Supreme Court going to punish them for that? Are we really going to read a Supreme Court decision saying that if it\u2019s the victim\u2019s fault that the killers got their hands on a gun, then they are to be acquitted? I want to believe that this series of questions was Justices Alito and Scalia expressing their own personal frustration that death penalty proponents are being somewhat successful, rather than a legal<\/em> argument. As Professor Keir Weyble said \u201cYou can\u2019t hold that against Glossip, it\u2019s not just abolitionists, it\u2019s the market.\u201d\n\nProfessor John Blume also commented on the oral argument: \u201cTruthfully, it\u2019s very difficult to tell. The swing vote, Justice Kennedy, did not say a lot and what it said can be interpreted in multiple ways. It will be close. It\u2019s somewhat optimistic to say that the Court will hold that you cannot use midazolam for lethal injections. On the other hand, there was initially the thought that they granted cert to \u201cshut down\u201d lethal injection litigation, and nothing that happened during the argument supports that, so it\u2019s really hard to predict how it\u2019s gonna go.\u201d On the use of midazolam, Professor Blume explained that although the states could just elect not to use the three drug protocol, and instead just use one drug, like we do with the euthanasia of animals, but the states insist on the three drug protocol because it gives the appearance that the inmate goes peacefully to sleep.\n\nI do not purport to know what the Supreme Court is going to decide. But I do know it\u2019s not going to be the death penalty win that I was hoping it would be. Professor Weyble explained \u201cThere seems to be some institutional desire to avoid litigation whac-a-mole over lethal injection method and protocols.\u201d After all, there was some suggestion in Baze<\/em>, especially Stevens\u2019 dissent, that unless the Court decides to take definitive action, the justices will have to constantly deal with these claims. However, it is hard to see how the liberal wing of the Court can realistically get five votes to eliminate lethal injection litigation. So, it seems like the best result we can hope for is a narrow decision putting a stop to botched executions with the use of midazolam. That is until the same states that now use midazolam find a new way to violate the Eighth Amendment and we wait for another seven years for the Supreme Court to put a stop to that.\n\n[1]<\/sup><\/sup><\/a> I would like to thank Prof. John Blume, Sheri Johnson, and Keir Weyble for not only taking the time to discuss the oral argument with me, but also for being my teachers and mentors throughout my \u2013many\u2013 years at Cornell Law School.","protected":false},"excerpt":{"rendered":"

Recently the Supreme Court heard arguments on the constitutionality of Oklahoma’s drug protocol using midazolam. This could signal the Court’s ruling.<\/p>\n","protected":false},"author":1,"featured_media":1982,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_acf_changed":false,"footnotes":""},"categories":[18,19],"tags":[],"class_list":["post-1985","post","type-post","status-publish","format-standard","has-post-thumbnail","hentry","category-feature","category-feature-img"],"acf":[],"_links":{"self":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/1985","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/comments?post=1985"}],"version-history":[{"count":0,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/posts\/1985\/revisions"}],"wp:featuredmedia":[{"embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media\/1982"}],"wp:attachment":[{"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/media?parent=1985"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/categories?post=1985"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/publications.lawschool.cornell.edu\/jlpp\/wp-json\/wp\/v2\/tags?post=1985"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}