GOT XANAX? So it’s come to this: It’s time to bring back the firing squads. Weirdly, this would be the most sensible and un-ironically humane suggestion to come out of the 127 pages of nasty, snarky, and scholarly exchanges between members of the U.S. Supreme Court on the subject of the death penalty this week. I’m not sure why, but in recent years, the Supreme Court of the United States has come to be known as SCOTUS, much the way the president is now popularly known as POTUS. Both acronyms conjure images of body parts I’d rather not visualize, so somebody needs to fix that. That being said, it’s been an extremely productive week for SCOTUS, and the results have been profoundly mixed. Gays can now marry, while efforts to keep mercury out of the air took a punch in the throat. Yet another attempt to deep-six the Affordable Care Act , on hyper technical grounds, was sensibly deep-sixed.
On the death penalty, the Supremes were asked to decide whether using a Xanax-like medication — as opposed to the barbiturates traditionally used — as part of the chemical cocktail used to dispatch individuals sentenced to death constituted cruel and unusual punishment. A majority concluded there was no evidence to suggest midazolam — the new knockout agent under contention — was too weak and feckless to reliably mask the excruciating pain inflicted by the two other compounds that make up lethal injections. More creatively — and weirdly — the majority also opined that any inmates challenging lethal injections on cruel-and-unusual grounds needed to first identify an alternative method to be offed before their petitions could be considered.
Much of the debate was totally predictable yet compelling. In his dissent, Justice Stephen Breyer made a sweeping case against capital punishment in any form, arguing innocent people have been and will continue to be wrongly executed. Since 2002, Breyer pointed out, 115 inmates sentenced to death were factually exonerated. In 2014, there were six. All had served more than 30 years before their innocence was established. Those were the lucky ones. The FBI examined 35 capital cases and found flawed microscopic hair analysis had been submitted by the prosecution as evidence in 33. Nine of the 33 defendants had already been executed. In response, Justice Clarence Thomas described the unspeakable cruelties inflicted by capital case defendants in such convincing detail I had to rinse the blood from my mouth. Justice Antonin Scalia, for whom withering disdain is high art, sneered and withered as only he can. He mocked Justice Breyer’s dissenting treatise as being “devoid of any meaningful legal argument,” adding it was “full of internal contradictions and (it must be said) gobbledygook.”
For my money, Justice Sonia Sotomayor stole the show. She pointed out that the lethal injection had been invented in the 1970s right after the Supreme Court lifted a five-year moratorium on executions citing the arbitrary and capricious manner in which they took place. The first person to be executed post moratorium was Gary Gilmore, shot to death in Utah by a five-person firing squad. For a nation still badly torn on capital punishment, that was way too much information. To put a happy face on the death penalty, the state of Oklahoma concocted what’s known as the lethal injection protocol. Sodium thiopental, a quick-acting barbiturate, was administered to render the executed “insensate” to the effects of potassium chloride, which in the words of Sotomayor functions as “the chemical equivalent of being burned alive” before it stops the heart. To prevent the unsightly writhing associated with such pain, a paralytic agent is also administered. Most states, it should be noted, have banned the use of such paralytic drugs for animal euthanasia on humanitarian grounds.
In recent years, companies that manufacture the knockout drugs used in lethal injections have stopped making it or selling it to correctional institutions in response to pressure from death-penalty opponents. In response, Oklahoma switched to midazolam, prompting the challenge before the supremes. Sotomayor expressed extreme doubt about the sole expert who testified that midazolam could get the job done. The only “scholarly” sources he cited, she noted, were an Internet website — www.drugs.com — and a fact sheet prepared by the drug’s manufacturer. As an anesthesia, Sotomayor observed, midazolam is generally recommended for “not terribly invasive” procedures like colonoscopies and is never a stand-alone drug in major surgeries. The first inmate to be executed with midazolam writhed about for 10 minutes, screaming, “This shit is fucking with my head.” In another case, an Arizona inmate was given 150 percent more than the recommended dose for executions yet “gasped and snorted for two hours” before his ghost got given up. In neither case did the new chemical curtain prove effective. It should be noted, however, several other executions have since taken place without incident.
The firing squad, Sotomayor argued, might actually be the most humane alternative to what was invented to be a humane alternative to the firing squad. She cited evidence that 7.4 percent of 1,054 lethal injections administered between 1900 and 2010 appear to have been “botched.” That figure is based on post-mortem blood tests showing that levels of the knockout drugs used were not sufficiently high to “maintain unconsciousness in the face of agonizing stimuli.” By contrast, Sotomayor noted that not one of the 34 firing squad executions administered in Utah have experienced such technical difficulties. “Such visible yet relatively painless violence may be vastly preferable to an excruciatingly painful death hidden behind a veneer of medication,” she argued. “The States may well be reluctant to pull back the curtain for fear of how the rest of us might react to what we see.”
Failing that, we can always reach for the Xanax. Make mine a double.