The NAACP Legal Defense Fund is deeply disappointed that the United States Supreme Court has upheld the lethal injection cocktail used by Oklahoma to carry out executions. The Supreme Court’s ruling in Glossip v. Gross means that Oklahoma, and the other states that rely on similar execution protocols, can continue to expose condemned prisoners to an unacceptable risk of significant pain and suffering. This decision cannot be reconciled with the Eighth Amendment’s prohibition on cruel and unusual punishment.
“The United States Constitution cannot – and does not – countenance torturing people to death,” said Sherrilyn Ifill, President and Director-Counsel of the NAACP Legal Defense & Educational Fund, Inc. “The fact that the states continue to struggle to identify lawful methods of execution demonstrates that it is long past time for this country to stop tinkering with the machinery of death. I join Justice Breyer and Justice Ginsburg in calling for a reconsideration of the constitutionality of the death penalty, and I applaud both Justices for acknowledging ‘that the death penalty, in and of itself, now likely constitutes a legally prohibited “cruel and unusual punishmen[t].'”
The majority’s decision in Glossipis troubling in multiple respects. It accords significant deference to a lower-court finding that was based on shoddy science and that reached a suspect conclusion regarding the efficacy of Oklahoma’s lethal injection cocktail. It suggests that the Constitution permits painful methods of execution so long as significantly less painful methods are not readily available. And it requires prisoners to prove the medical effects of novel lethal injection cocktails that have not and cannot be tested on human beings to determine whether they function as the state claims. In total, the Court’s decision makes it easier for states to experiment on death row prisoners with new and untested lethal injection cocktails while avoiding meaningful review in court.
The decision is particularly unsettling because the facts of Glossip highlight the need for careful scrutiny and transparency in the implementation of the death penalty. In 2014, Oklahoma changed the drugs that it used to perform executions based on the recommendation of a lawyer with no medical training, who developed the execution protocol based on a review of Wikipedia and discussions with other attorneys. Thereafter, Oklahoma refused to allow its new drug protocol to be reviewed by the public or the state’s condemned prisoners. When it was used in three 2014 executions-in Ohio, Oklahoma, and then Arizona-the condemned prisoners appeared to experience significant suffering, often for extended periods of time, before being pronounced dead. Oklahoma’s secret drug protocol fails to ensure that the condemned prisoner is unconscious before he is given the painful drugs that will cause his death. Notwithstanding these botched executions, Oklahoma, supported by fourteen different states, pressed for Supreme Court approval of its lethal injection cocktail, and the Supreme Court provided it.
“Glossip makes clear that the drugs used to carry out executions, and the protocols in which they are used, must not be shrouded in secrecy,” said Christina Swarns, LDF’s Litigation Director. “No lawful, appropriate method of execution needs to be hidden.”
