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Oral arguments are just about a month away in Glossip v. Gross, the SCOTUS case challenging Oklahoma's use of lethal injections, and the briefs are just beginning to arrive. Glossip challenges Oklahoma's use of a three drug lethal injection cocktail, which has been connected to several botched executions.
The drugs in question, potassium chloride, pancuronium bromide and midazolam, are meant to work in concert to achieve a relatively humane execution. midazolam anesthetizes the prisoner, pancuronium bromideparalyzes him, while potassium chloride stops his heart. The problem? According to three men sentenced to execution in Oklahoma, midazolam doesn't prevent excruciating suffering, it simply hides it from observers.
Oklahoma began using midazolam in its lethal injections only last April, to replace the more commonly used, but recently discontinued anesthetic, sodium thiopental. Whereas the former anesthetic created a "comalike unconsciousness," midazolam is incapable of creating such an unconsciousness, Richard Glossip and two other Oklahoma death row prisoners argue, in their brief to the Supreme Court. Rather, midazolam, coupled with a paralytic drug, simply create a "chemical entombment."
When potassium chloride is injected, it feels like "liquid fire," akin to being set aflame. Petitioners argue that Oklahoma's injection cocktail doesn't prevent a prisoner from feeling such pain, it simply blocks their expression of it -- the paralysis only masks excruciating suffering. They argue that the lethal injections the state plans to administer to them violate the Constitution's ban on cruel and unusual punishment.
The Supreme Court last addressed the constitutionality of lethal injection in the case of Baze v. Rees. A plurality there found that lethal injection was not cruel and unusual punishment, in part because, by inducing deep unconsciousness, the state prevented the prisoner from experiencing what would otherwise be a "substantial, constitutionally unacceptable risk of suffocation and pain."
An amicus filing by twelve former states Attorneys General argues that midazolam cannot consistently induce the unconsciousness required under Baze -- the drug's primary use is to reduce anxiety and is not approved by the FDA as a sole anesthetic. It has been tied to at least three botched executions. Its use, say amici, is inappropriate and its adoption was made without proper research.
The state has yet to submit its own brief, however, they argued successfully in the Tenth Circuit that Oklahoma's execution procedures did not create an unacceptable risk of harm. They will likely make a similar argument before the Supreme Court, which has never invalidated found state's execution method to be cruel and unusual punishment.
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