Judicial Deference and the Future of Lethal Injection


Judges in this country have a long track record of staying out of the way when it comes to the methods states use to put condemned inmates to death. On Monday, Federal District Judge Stephen Friot followed suit when, in a long-awaited decision, he upheld the constitutionality of Oklahoma’s three-drug cocktail—midazolam (a sedative), vecuronium bromide (a paralytic), and potassium chloride (a drug that stops the heart).

Friot did so even as evidence of lethal injection’s flaws and failures and of the unreliability of midazolam mounts. He did nothing unusual: judges often defer to state officials and allow executions to proceed. Such deference comes at the expense of those subject to execution. It also should alert abolitionists to the importance of political mobilization in the ongoing work of trying to end America’s cruel lethal injection experiment

What do we now know about the history and problems of lethal injection?

The first serious consideration of this method of execution occurred in the late 19th century when the state of New York convened a commission to consider replacing hanging. Use of lethal injection was first proposed to the commission by Julius Mount Bleyer, a New York doctor. He invited the commissioners to envision that “the condemned could be executed on his bed in his cell with a 6-gram injection of sulfate of morphine.”

Proponents of lethal injection touted its humanity. They argued that, if done correctly, the procedure would be painless. The inmate would be asleep “within thirty minutes, the condemned man’s heart would stop and he would be dead.” In addition, pro-lethal injection commissioners said that unlike hanging, the method could not be botched because officials could always just give them more drugs.

The procedure’s perceived simplicity and allegedly low risk of complication led some to believe that a prison warden could quickly learn how to administer an injection. And it would be cheap. All that was needed was a needle and a small amount of morphine.

On the other hand, lethal injection’s opponents feared that it would actually be easily botched—especially if doctors did not conduct the procedure. For inmates who never used drugs, they said, the “sudden” injection of a poison could result in a “violent” death. For those who regularly used drugs, a high tolerance for morphine would result in a slow death.

Lethal injection’s opponents made a second argument: lethal injection, they said, would be too humane. Although this argument clearly contradicted the first—which said that the method could result in an inhumane, violent or slow death—it nevertheless proved effective. Opponents claimed that if lethal injection worked as planned, then it would take the dread out of death and would dampen capital punishment’s deterrent effect.

Ultimately, lethal injection’s opponents prevailed. The commission rejected it and opted for the electric chair.

For nearly a hundred years after New York’s decision, no state in the United States authorized lethal injection. But New York’s consideration of electrocution and lethal injection foreshadowed how this debate would unfold almost a century later in Oklahoma when two state legislators pushed for yet another change in this country’s execution arsenal. They succeeded in doing what lethal injection’s proponents had failed to do in New York.

However, from its first use in Texas in 1982, lethal injection has betrayed the hopes of its early proponents. It has been botched at a higher rate than any other execution method. In the last decade, more than 8% of all lethal injection executions have been botched.

And as states have experimented with and employed different drugs and drug combinations, lethal injection’s difficulties have only increased. Sedative combinations of the kind Judge Friot approved have proven to be the most unreliable of all lethal injection drugs. Executions using sedatives like midazolam take much longer from the time the drugs start flowing until the inmate dies, and more than 1/5 are botched in some manner.

Judge Friot ignored these facts and focused instead on what he called “the battle of the experts in this case.” As he put it, “Rarely, in any field of litigation, does a court see and hear well-qualified expert witnesses giving expert testimony as squarely-and emphatically-contradictory, on issues at the heart of the matter, as in this case.”

Yet, despite his acknowledgement of the qualifications of experts called by the plaintiffs, on every issue Friot sided with the defense and deferred to the state’s contentions.

Among other things, he dismissed testimony offered by the plaintiffs about Oklahoma’s October 2021 execution of John Grant, who, witnesses said, convulsed repeatedly and vomited immediately after the administration of midazolam. In contrast, he relied on the testimony of one of the state’s experts that Grant was “unconscious” before he “lost his gastric contents.”

The judge went out of his way to use the words of one of the plaintiff’s experts, Dr. Mark Edgar, against him when Edgar said that midazolam-induced “pulmonary edema” was ‘‘‘one possibility.’” Pulmonary edema means that a person’s lungs fill with liquid while they continue to breathe. It causes them to feel as if they were drowning and suffocating.

Again deferring to the state, Friot emphasized that Edgar “could not say when in the lethal injection process…the pulmonary edema began to develop in the inmates whose autopsy reports he reviewed.”

Finally, Friot sided with the state on what he called the “ultimate issue of whether midazolam can be relied on to render an inmate insensate to pain.” He ignored the mountain of evidence from across the nation about problems in midazolam executions and concluded, as the state’s experts contended, that “midazolam, administered as specified in the Oklahoma protocol, does, in fact, reliably achieve the anesthetic desired effect.”

Why this deference to the state and its experts?

The answer lies, in part, in the so-called “lethal injection trilogy” of Supreme Court decisions, Baze v. Rees, Glossip v. Gross, and Bucklew v. Precythe. Each of those cases was a victory for lethal injection. Each ignored lethal injection’s documented problems and resurrected the promises of those who promoted it first in New York and later in Oklahoma. Together these decisions require anyone challenging lethal injection to show that it poses “a substantial risk of severe pain” and that the inmate identify a “feasible and readily implemented” alternative execution method.

Friot’s decision also demonstrates that the trilogy not only altered the legal standards but tilted the playing field for fact-finding when death row inmates bring lethal injection challenges. As Friot put it, the Supreme Court’s lethal injection rulings require what he labeled the “deference that is due a state’s choice of execution procedures.”

Such deference may, in the near term, help keep the machinery of death running.

But it should remind us that the question of how we execute, as well as whether we execute at all, is as much political as it is legal. Ending the lethal injection charade, as well as the death penalty itself, ultimately will depend on the will and work of the American public and its elected representatives.

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