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SCOTUS Agrees to Hear Lethal Injection Case

By Mark Wilson, Esq. on January 23, 2015 | Last updated on March 21, 2019

Why do these things always happen on a Friday? Last week, the Supreme Court dropped the bombshell that it was reviewing the Sixth Circuit's same-sex marriage case.

Today, the Court announced that it would hear the appeal of Richard Glossip and two other death row inmates in Oklahoma scheduled to be executed in the next few months. The petition is noteworthy because the inmates are challenging the legality of the lethal injection process itself.

In the Nick of Time

The grant of this petition comes shortly after the Court denied a stay of execution for Charles Warner, who was a party to this case until he was executed January 15 using the three-drug cocktail that has proven so controversial of late. Warner, Benjamin Cole, Glossip, and John Grant were rebuffed at the Tenth Circuit Court of Appeals on January 12 when that court denied a preliminary injunction barring their execution on Eighth Amendment grounds. Glossip was scheduled to be executed January 29 -- and actually still is. The order granting cert. didn't stay his execution.

Justice Sotomayor, who dissented in the January 15 order along with Justices Ginsburg, Breyer, and Kagan, described how badly the April 29, 2014, execution of Clayton Lockett went:

Lockett awoke and writhed on the execution table for some time after the drugs had been injected and officials confirmed him to be unconscious. He was overheard to say, "'Something is wrong,'" and, "'The drugs aren't working.'" Eventually, some 40 minutes after the lethal injection drugs were administered, Lockett died.

Lockett's horrific death was apparently due to the use of a drug called midazolam in the three-drug cocktail. Midazolam was supposed to be the sedative portion of the mixture. Drug companies stopped making its predecessor, sodium thiopental, available to prisons for lethal injection in 2010. In fact, drug companies both at home and abroad have refused to provide lethal injection drugs in recent years, forcing prisons to find alternatives that may not be as effective. This in turn has led to a recent spate of terrible lethal-injection deaths.

Questions for Review

In 2008's Baze v. Rees, the Court established a standard to be used in issuing last-minute stays of executions. It basically said that it wouldn't issue stays where the lethal injection procedure was substantially similar to the one it reviewed in Baze. Glossip's cert. petition, however, points out that midazolam wasn't part of Baze. Unlike sodium thiopental, midazolam "is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness."

The cert. petition called on the Court to decide whether a state can continue to use the three-drug method if the pain-relieving drug indisputably doesn't relieve pain; whether the Baze stay standard applies when a different injection method is used; and whether a prisoner needs to establish that an alternative injection method exists.

It seems unlikely that the Court took the case to toss out lethal injection altogether; that position wouldn't have a majority. But at least one other justice (whose name might start with "K" and end with "Ennedy"), in addition to the four who dissented from denying the stay on January 15, must want to address the issue of midazolam's efficacy.

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