Supreme Court to Hear Oklahoma Lethal Injection Lawsuit

Last week, the Supreme Court agreed to hear a case that calls into question the constitutionality of Oklahoma’s method of execution.  The lawsuit comes amid scrutiny surrounding a relatively new, and allegedly inhumane, three-drug lethal injection that has been used in a handful of questionable executions over the last year.  Although the Supreme Court accepted the challenge to Oklahoma's three-drug method, it has yet to stay the execution of the three death-row plaintiffs whose pending lethal injection is scheduled to be carried out before the Justices make a decision.

New Three Drug Procedure Raises Controversy

In the 1970’s, several states, including Oklahoma, transitioned to a more humane three-drug procedure of execution.  The second and third shots, which provide the fatal element to the execution, are widely agreed to cause significant pain, making the first shot to numb the inmate a critical element to the execution.  For years the first shot has consisted of a fast-acting barbiturate such as sodium thiopental or pentobarbital, both of which are typically imported from Europe.  In recent years, opposition to the death penalty has resulted in European, and some American, manufacturers to refuse to sell the critical barbiturates to state prisons that use lethal injections, leading many states to scramble for an alternative drug.

Several states, including Oklahoma, Ohio, and Arizona, have settled on the substitute midazolam as the new sedative drug for use in the first shot.  Midazolam has become the focal point of criticism by death penalty opponents who argue the new drug is insufficient in its purpose and has been the direct cause of three botched executions in the past year.  Executions in Oklahoma, Arizona, and Ohio have all taken longer than expected, and have, according to witnesses, caused the inmate severe pain due to failure to sedate.

Oklahoma Inmates Challenge Constitutionality of Lethal Injection Drug

The lawsuit, originally filed by four Oklahoma death row inmates, alleges that the state’s use of midazolam violates the Eighth Amendment to the Constitution which protects from cruel and unusual punishment.  According to the complaint, midazolam is not strong enough to render inmates completely unconscious before the administration of the fatal, and painful, second and third drugs used in lethal injection procedures.  The inmates filed the lawsuit after the prolonged death of Clayton Lockett in Oklahoma in April of 2014.

Lockett’s execution took almost one hour to complete before the condemned eventually died of a heart attack.  Allegedly at fault was the midazolam, which was not properly administered an insufficient in strength to cause Lockett to be sedated.  After Lockett’s controversial execution, the state issued a moratorium on the death penalty until the execution of Charles Warner – who joined the pending lawsuit before his death – in late January of this year.  Wagner, who was executed on January 15th after the Supreme Court agreed to hear the case, also took longer than typically expected to die and was quoted as saying that his “body is on fire” and “no one should go through this” before the injection process was complete.

The Justices voted 5-4 to allow Wagner’s execution to proceed despite the pending legal challenge to the constitutionality of midazolam over a passionate dissent from Justice Sonia Sotomayor who wrote that she was, “deeply troubled by this evidence suggesting that midazolam cannot be constitutionally used as the first drug in a three-drug lethal injection protocol.  Petitioners have committed horrific crimes, and should be punished, but the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death."  As the three remaining Oklahoma plaintiffs all face execution before the Court will hear and decide on the constitutionality of midazolam, the Justices will need to issue another decision on whether or not to stay the lethal injections.

Supreme Court has yet to Delay Pending Executions

Only four justices on the Supreme Court must agree to hear a constitutional challenge, however, five must vote to stay an execution while a challenge is pending.  According to an article by Adam Liptak of the New York Times, the Justices have historically recognized a “courtesy fifth” vote in which a judge will vote to stay an execution even if he or she did not vote to hear the constitutional challenge.  While the Supreme Court is not compelled to employ the courtesy fifth vote, the fact that the Justices did not agree to stay Wagner’s execution in January despite taking the case was uncustomary. 

The Court will have to make decisions on the remaining three inmates whose executions are pending, but those decisions may be made easier by Oklahoma Attorney General’s office recent announcement that it will request to postpone the lethal injections until the case is resolved.  Attorney General Scott Pruitt filed the request on Monday, despite his insistence that the state’s three-drug process is constitutional.  According to Pruitt, he submitted the request to delay the executions to ensure justice was served before they were carried out.

The Supreme Court will hear the challenge to the use of midazolam in April and make a decision in June.  Two other states, Arizona and Ohio, have already reworked lethal injection procedures despite the ongoing debate over midazolam’s constitutionality.  

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