The US supreme court has approved the use of the controversial sedative midazolam in Oklahoma’s execution protocols, paving the way for the state to resume executions for the first time since January.

The ruling ends a hold on most executions outside Texas and Missouri. Several states had delayed executions while they awaited the ruling in Glossip v Gross, in which the court was asked to decide whether Oklahoma’s use of midazolam fell within the boundaries of the US constitution.

Though the ruling fell into the familiar 5 to 4 conservative to liberal split within the supreme court, it marked the first time in seven years that the nation’s highest judicial panel considered directly the constitutional basis of modern executions by lethal injection. It also gave the progressive-leaning justices an opportunity to vent their opinions on the ultimate punishment, with Stephen Breyer backed by Ruth Bader Ginsburg, using a dissenting opinion to openly denounce the death penalty as a violation of the eighth amendment ban on cruel and unusual punishment.

In her dissent, Sonia Sotomayor went further, accusing her five conservative fellow justices of being so wrong in their majority ruling that they risked exposing death row inmates to “what may well be the chemical equivalent of being burned at the stake”. She said that the fallout of the decision, which will allow death penalty states to continue to use the sedative midazolam in their lethal injection protocols, could be that prisoners opt instead for death by firing squad.

“There is evidence to suggest that the firing squad is significantly more reliable than other methods, including lethal injection using the various combinations of drugs thus far developed,” Sotomayor wrote. Though firing squads were primitive and bloody, “at least from a condemned inmate’s perspective, however, such visible yet relatively painless violence may be vastly preferable to an excruciatingly painful death hidden behind a veneer of medication”.

The supreme court review was prompted by a string of recent procedures that have shown prisoners displaying visible signs of prolonged distress – most notoriously the execution of Clayton Lockett almost exactly one year ago, in which he thrashed and groaned on the gurney in full view of witnesses, taking 43 minutes to die.



Glossip v Gross was brought by four inmates – one of whom was executed days before the supreme court agreed to hear the case – who argued that the state’s use of midazolam amounted to cruel and unusual punishment because the drug is unreliable for inducing a coma.

Oklahoma’s protocol calls for a three-drug cocktail of the sedative midazolam, paralytic vecuronium bromide and potassium to stop the heart. Florida uses a similar cocktail, with a different level of midazolam. Ohio and Arizona – two states that also saw prolonged executions in 2014 – use midazolam in a two-drug protocol. In Missouri, midazolam is used as a sedative before the execution officially begins.

The majority ruling was written by Samuel Alito, with the support of the chief justice John Roberts as well as Antonin Scalia, Clarence Thomas and the crucial swing vote of Anthony Kennedy. Alito concluded that the death row inmates who had brought the case had failed to show that midazolam was an ineffective way of preventing agonizing pain at execution and as such violated the eighth amendment.

The decision is likely to open the floodgates to a raft of new executions that have mounted up over the past six months in expectation of this moment. But the active death penalty states – which now number less than 10 – still face the challenge of acquiring lethal injection drugs in the face of a worldwide boycott of sales to US corrections departments.

In Oklahoma and across the US, drugs that once dependably formed the basis of the state’s execution protocol – sodium thiopental and pentobarbital – are now unattainable through a combination of government restrictions and the refusal of manufacturers to sell the chemicals to US prisons.



Many have turned to scarcely regulated compounding pharmacies; some have purchased medicines unlawfully from abroad; and many have turned to pharmaceuticals previously unused in death chambers.

The fact that only two of the nine justices used the opportunity to reviewthe death penalty – the first of its kind since 2008 – to question whether capital punishment was in itself constitutional is an indication of the hard work abolitionists still have to do in effecting a nationwide ban on the practice. Though the death penalty is dwindling – both in terms of actual executions and new death sentences – it shows a stubborn resistance to being eradicated in the US.

Dale Baich, a lawyer for one of the death row petitioners, vowed to continue fighting to prevent botched executions in the future. He accused the justices in the majority of allowing death penalty states “to conduct additional human experimentation when they carry out executions by lethal injection”.

Anti-death penalty groups vented their disappointment with the supreme court ruling soon after it was delivered on Monday. Amnesty International executive director Steven Hawkins said: “This decision does not change the fact that regardless of the method of execution, the death penalty is broken beyond repair. The court’s decision today will not resolve the death penalty’s fundamental flaws, including the risk of executing a wrongfully convicted person.”

Virginia Sloan, president of The Constitution Project, said the ruling was perverse in terms of the mood of US public opinion: “Only a handful of states continue to use the death penalty and many have repealed it entirely. Even in those states that do use it, executions continue to decline dramatically. Today’s decision is at odds with growing sentiment in the country that the death penalty is badly broken and cannot be fixed.”