Death Penalty

U.S. Supreme Court to Review Oklahoma's Lethal Injection Protocol

One week after allowing an Oklahoma inmate's execution to be carried out, SCOTUS agrees to hear appeal over the state's use of a controversial execution drug.

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The U.S. Supreme Court agreed last Friday to hear arguments over whether Oklahoma's lethal injection protocol violates the Constitution's protection against cruel and unusual punishment.

The justices will review whether midazolam—the drug Oklahoma used for the first time in the botched 2014 execution of Clayton Lockett—can be used in future executions. Petitioners in the case, Glossip v. Gross, argue that midazolam "cannot reliably produce a deep, comatose unconsciousness" and ensure an inmate does not experience "intense and needless pain and suffering" when the second and third drugs are injected.

The decision to review Oklahoma's lethal injection protocol comes eight days after the Court refused to halt the execution of Oklahoma inmate Charles Warner, who was executed with a three-drug cocktail that included midazolam on January 15. Warner was a petitioner on the case the Court agreed to hear.

The last time the U.S. Supreme Court ruled on the constitutionality of lethal injection protocols was in 2008 in Baze v. Rees. In that case, the Court upheld Kentucky's three-drug cocktail used for executions—the sedative sodium thiopental, the paralytic pancuronium bromide, and potassium chloride—as constitutional. Without a proper dose of sodium thiopental to render the prisoner unconscious, the court wrote, there would be "substantial, constitutionally unacceptable risk" that the inmate will suffer unnecessarily when the second and third drugs are injected. However, the Court found no reason to believe that Kentucky inmates were at risk of receiving an improper dose.

Petitioners in the Glossip v. Gross argue "there is a well-established scientific consensus that [midazolam] has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness," which was a requirement the Court laid out in Baze. Indeed, part of the state's research to determine if midazolam would render an inmate unconscious did not come from any medical studies, but from "Wiki leaks or whatever it is," according to testimony provided by Michael Oakley, general counsel for Oklahoma's Department of Corrections.

At the time of the Baze ruling, all states that imposed capital punishment in the U.S. used the same three-drug cocktail to carry out executions, and all drugs used came from Food and Drug Administration (FDA) regulated companies that stopped allowing their drugs—namely, sodium thiopental—to be used for executions around 2009. Without access to these drugs, states began to change their lethal injection protocols to include drugs like midazolam, which had never been used in executions before.

Protocols now vary widely from state to state, and the suppliers of these new drugs are mostly unknown. However, no state uses the drug cocktail evaluated by the Court in Baze to carry out executions today.

Last year, Ohio became the first state to use midazolam in an execution—one that lasted nearly 25 minutes and prompted a lawsuit. A year after that execution, Ohio removed midazolam from its lethal injection protocol.

Arizona used a combination of midazolam and hydromorphone in an execution that lasted 114 minutes last year. During that time, the inmate was "gasping and snorting for more than an hour." Like Ohio, Arizona agreed to no longer use midazolam in future executions.

A St. Louis Public Radio investigation found Missouri had used midazolam in every execution carried out in the state since November 2013, despite the fact that the Secretary of Missouri's Department of Corrections testified they had never used the drug. Florida has also used midazolam to carry out executions, but all occurred without incident. The ruling in this case will likely have an impact in the states that allow executions to be carried out with midazolam.

The U.S. Supreme Court has never struck down a particular method of execution—including hanging, firing squad, lethal gas, or electrocution—as unconstitutional, so it's unlikely it will do so with midazolam. It's also worth remembering that all executions carried out in the U.S., including the several botched executions from last year, were done with the Supreme Court's approval. However, given that midazolam has not been approved for use as an anesthetic by the FDA, and that there are no studies to show it will work as intended in executions, there's a chance the Court will no longer allow this particular drug to be used in executions going forward.

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  1. As the Court didn’t stay the last execution, I find it doubtful that they’ll find the protocol in violation of the Constitution.

  2. So is this an opportunity for the sentimentalists on the court to reinforce the idea that people convicted of brutal crimes don’t deserve our sympathy, so it’s best to just turn our brains off and kill them in whatever way appeals best to our sense of vengeance?

    1. I say shunt the entire power generation of a dam like Hoover between two giant electrodes for 1 millisecond. The giant lightening bolt will vaporize him before he has a chance to feel pain.

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  4. I’ve never been a fan of lethal injection. I would prefer if they would use a wood chipper. Much faster throughput and the results are easily compostable. We could empty all the death row facilities in about a week, tops.

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  6. I administer midazolam every day in my practice. The response of the patient is widely variable with some being awake and aware given doses that others are completely unaware. Given this and the fact that non-medical personnel administer the drug in executions without the ability to accurately assess the level of consciousness there is no way to guarnatee that someone will not be aware when they are paralyzed and then killed by cardiac or respiratory arrest. Given that ‘cruel and unusual punishment’ as defined by our courts excludes this circumstance then midazolam, and the ‘three drug cocktail’ should be replaced as the method of capitol punishment.

  7. Why should anyone care if killing them for a terrible crime cause discomfort. My God we are killing them because they killed someone and I’d bet you dollars to doughnuts they didn’t care if they caused their victim discomfort while being murdered. Their subsequent punishment should be drawn out as long as possible and should be as painful as we can possible make it. What kind of a deterrent is the death penalty if it is painless? Why not just sing them a lullaby and give them hot chocolate before tucking them in for the endless sleep. “Now close you eyes and sleep you poor misunderstood Cretan and we’ll sign you a lullaby to help you sleep” Might as well have Nancy Pelosi kiss them goodnight.

  8. I don’t disagree. I’m just referencing the standard that has been set by the courts. Most physicians bemoan the day when anesthetics were ever associated with capital punishment. Blame that on a few ‘do-gooders’ amongst the ranks. Our current system is a charade and a very expensive one at that.

  9. End the death penalty. Too many people have been found to be innocent that were sitting on death row to believe that we aren’t executing innocents.

    Unless you believe the courts are always right.

  10. End the death penalty. Too many people have been found to be innocent that were sitting on death row to believe that we aren’t executing innocents.

    Unless you believe the courts are always right.

    1. Even if the courts are “usually” right, what’s the punishment or “fairness” when a person is found ‘guilty’ AND executed AND then new evidence proves they were innocent?

      Where’s the punishment/feedback in the system for the judge or jury?

      What’s the appropriate punishment for the ‘crime’ of being so seriously wrong about their conclusion?

      Today: None. Why not?

  11. What is the big deal about lethal injections? Veterinarians in this country humanely put pets to death every day with no suffering and the results are instantaneous. Why not use the same chemicals with prisoners to be executed?

    Heroin addicts who overdose are frequently found with the needle still in their arms. What could be faster than that? We certainly capture enough heroin that supply shouldn’t be a problem.

    Why do we unnecessarily complicate things that should be simple?

  12. I oppose capital punishment, but as for the “logic” behind this statement…
    Petitioners in the Glossip v. Gross argue “there is a well-established scientific consensus that [midazolam] has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness,”

    …. How about ramping up to a lethal dose of heroin? Anyone question whether THAT would meet the desired effects of “comalike unconsciousness” (and subsequent death)?

    Idiots.

    Spot on, dalexander43210.

  13. Why not just use Heroin that the state has seized in drug busts? A large enough dose should kill anyone with no pain at all. And it would be free.

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