Following a number of high-profile cases involving controversial death-row inmates, the Supreme Court has decided to weigh in on the use of lethal injections and whether such practices violate the Constitution's measures against cruel and unusual punishment. The decision to review the procedure marks the 1st time the high court has addressed the issue since 2008, when it unilaterally denied a challenge to the practice. Now, however, following a single-line issue published late Friday afternoon, the Roberts Court has agreed to hear a case brought forward by three inmates awaiting execution who say the lethal dosage of drugs is unconstitutional.
The lawyer representing the prisoners, Oklahoma-based attorney Dale Baich, told USA Today:
The time is right for the Court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols.
He refers to the controversial execution of convicted murderer Clayton Lockett, whose allegedly painful and inhumane execution brought into question the legality and humanity of the lethal injection procedure. Since then, however, the state has put to death convicted child rapist and killer Charles Warner without any claim of foul play. Still, some lawyers say, the usage of the fatal combination of drugs can be excruciating, especially if used in the wrong order.
In an earlier challenge presented by Oklahoma defense attorneys, NBC News reports, naysayers of the penalty and the lethal injection have noted:
There is a well-established scientific consensus that it cannot maintain a deep, coma-like unconsciousness. For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures.
According to these lawyers, their clients are acutely aware of intense pain during their final moments, making the entire procedure entirely unacceptable under the Constitution's Bill of Rights. Attorneys have further claimed:
The lethal injection landscape has changed significantly since Baze v. Rees in 2008. At that time, every state was using the same three-drug combination, which the lawyers in Baze conceded was humane if administered properly. Today, states are not using that 3-drug protocol and instead are using experimental drug combinations. The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly.
The Supreme Court is expected to come to a conclusion on the issue by late June at the latest after hearing the case in April. A number of the Court's more liberal justices, including Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan, have previously expressed reservations about the current policies in place regarding lethal injection executions. Following a recent decision to ignore a similar petition from an inmate in Missouri, Justice Sotomayor remarked,
Now, these considerations are more salient than ever as the entire court prepares to hear a case that has the capacity to change the entire landscape of capital punishment in the United States. In the coming weeks, the scheduled executions of a number of death row inmates will be stayed while the Court begins to weigh arguments and evidence pertaining to the issue.
Many of the issues that have recently arisen around the drugs used in lethal injections followed the boycott of a number of European companies who refused to provide the necessary sedatives that, ostensibly, make the procedure more painless and humane. The United States, which remains one of the few "developed nations" that still makes use of the death penalty, has come under significant fire by other nations for the seemingly antiquated capital punishment system. Still, executions continue to happen by state jurisdictions, and in the states of Oklahoma, Florida, Ohio, and Arizona, the same apparently ineffective pain killer is used as the 1st of the 3 injections. Ohio, however, has announced that is will halt all executions until a superior alternative can be found.
Midazolam and the Supreme Court
Only 1 week after refusing to stay Charles Warner's execution, the justices will now hear his fellow inmates' appeal on a questionable lethal-injection drug.
What changed?
Last week, the state of Oklahoma executed Charles Warner after the Supreme Court refused to halt his execution while he appealed the constitutionality of the drugs used to kill him. Warner and 3 other death-row inmates argued that midazolam, a sedative used by Oklahoma and 3 other states in lethal injections, did not properly induce unconsciousness and would therefore lead to a horrifyingly painful death.
A 5-justice majority, however, denied Warner's request for a stay without comment, and the state of Oklahoma executed Warner shortly thereafter. Justice Sonia Sotomayor and three other justices dissented, arguing that Warner and the other inmates had raised serious questions about Oklahoma's lethal-injection procedures. "I hope that our failure to act today does not portend our unwillingness to consider these questions," Sotomayor wrote.
Those hopes were not in vain. On Friday, the Supreme Court granted the three remaining plaintiffs' petition to hear their case, titled
Glossip v. Gross, after it was relisted for further consideration. The justices gave no indication why they would refuse to stay Warner's execution, then agree to hear his case 7 days later. Requests for the Court to stay the other three inmates' executions are forthcoming, said Dale Baich, one of their attorneys.
The Supreme Court has not addressed a lethal injection protocol's constitutionality since
Baze v. Rees in 2008. A 6-justice majority ruled then that a 3-drug cocktail - the sedative sodium thiopental, the paralytic pancuronium bromide, and potassium chloride - did not violate the Eighth Amendment. But without sodium thiopental to anesthetize a condemned inmate, the court wrote, there would be "a substantial, constitutionally unacceptable risk of suffocation from the administration of pancuronium bromide and of pain from potassium chloride." In other words, the inmate would die in agony as he or she suffocated to death.
Amid intense pressure by anti-death-penalty activists, the last American drug maker to produce sodium thiopental withdrew from the market in 2011. State officials scrambled to find alternative sources in overseas markets, leading to a European Union embargo of lethal-injection drugs and raids by the U.S. Drug Enforcement Agency to seize stockpiles of sodium thiopental that had been imported without a license.
Without sodium thiopental, states then experimented with alternative cocktails. Midazolam, a sedative from the benzodiazepine family, was first used for executions in Florida as part of a 3-drug cocktail without apparent complication. Outside of the Sunshine State, however, it has led to at least 3 botched executions. Last January, Dennis McGuire told observers during his execution with midazolam and hydromorphone in Ohio that he could "feel his whole body burning" as he died. In July, Joseph Wood gasped for air for 1 hour and 57 minutes in Arizona during his executions with the same 2-drug cocktail.
Oklahoma first used a 3-drug midazolam cocktail identical to Florida's to execute Clayton Lockett last April. During his execution, an improper IV placement failed to deliver enough of the paralytic drug into his bloodstream, and he died of a massive heart attack while writhing in pain. In the aftermath, the other 4 Oklahoma death-row inmates appealed for a stay of their executions, arguing that midazolam did not produce a "deep, comalike unconsciousness" and was therefore an unacceptable substitute for sodium thiopental. As Justice Sotomayor observed last week, this paralytic's absence may have revealed pain and suffering that would otherwise be unobservable. This possibility raises serious questions about all executions performed with midazolam, including those carried out without incident in Florida.
The Supreme Court has never struck down an existing method of execution as unconstitutional. A ruling that forbids midazolam would reverberate even throughout states that do not use the sedative. No execution chamber in the U.S. currently uses the Baze cocktail, and no pharmaceutical company currently provides its key ingredient to American death rows. Even states like Texas, which uses a single-drug protocol with pentobarbital in its lethal injections, could find themselves on unsure constitutional footing.
Source: The Atlantic, January 24, 2015
US death penalty: Supreme Court to decide lethal injection case
US high court last week allowed Oklahoma execution to go on, despite questions over drugs used
The US Supreme Court revealed on Friday that it would look into lethal injections in Oklahoma, just a week after it allowed the execution of a man in that state, despite questions about the deadly drugs combined for the lethal injections.
The Oklahoma case was brought by 3 death row inmates in the state who say that lethal injections violate the US Constitution's ban on cruel and unusual punishment, according to a report from Reuters. All 3 of the inmates who brought the case are scheduled to be put to death within the next 2 months.
Questions have surrounded the 3-drug lethal injection process used in Oklahoma since April 2014, when the state botched the execution of convicted murderer Clayton Lockett. Execution officials had a difficult time placing Lockett's IV for the injection and it took 43 minutes for him to die, during which he was seen writing in pain, according to reports of the incident.
An investigation into Lockett's execution revealed that it wasn't the drugs that caused the slow, painful death, but the IV connection. Still, the state altered its lethal injection procedure following the Lockett debacle.
The Lockett case brought up questions of whether the Supreme Court would halt further executions in Oklahoma, pending a procedural review. On 15 January, the Supreme Court declined to halt the execution of Charles Warner, who was convicted of raping and murdering an 11-month-old baby.
The inmates who brought the case before the high court are Richard Glossip, John Grant and Benjamin Cole. Glossip is slated to be killed on 29 January for arranging the murder of his former boss. Grant's execution is scheduled for 19 February, after he was convicted of stabbing a correctional officer to death. Cole, who is to be killed on 5 March, was convicted of killing his 9-month-old daughter.
It was not immediately clear if the Supreme Court would halt any of the 3 executions while it's waiting to hear the case, which is to be argued on April, with a decision expected before July.
Source: The Independent, January 24, 2015
Supreme Court To Take Up Use Of Lethal Injection
The Supreme Court on Friday agreed to review Oklahoma's method of execution by lethal injection, taking up a case brought by three death row inmates who accuse the state of violating the U.S. Constitution's ban on cruel and unusual punishment.
The high court just last week allowed the execution of a convicted killer to go ahead in Oklahoma over the objection of its four liberal members.
The 3-drug process used by Oklahoma prison officials for carrying out the death penalty has been widely debated since the April 2014 botched execution of inmate Clayton Lockett, a convicted murder. He could be seen twisting on the gurney after death chamber staff failed to place the IV properly.
The inmates challenging the state's procedures argue that the sedative used by Oklahoma, midazolam, cannot achieve the level of unconsciousness required for surgery and was therefore unsuitable for executions.
On Jan. 15, the high court declined to halt the execution of another Oklahoma inmate, Charles Warner, who was convicted of raping and murdering an 11-month-old baby. The court was divided 5-4, with Justice Sonia Sotomayor writing a dissenting opinion.
Although 5 votes are needed to grant a stay application, only 4 are required for the court to take up a case.
The inmates say the 3-drug protocol used by the state can cause extreme pain in violation of the U.S. Constitution's ban on cruel and unusual punishment.
After the Lockett execution, the state revised its protocols by increasing the amount of midazolam used to render an inmate unconscious. Lower courts signed off on the change, as did the divided Supreme Court.
In her dissent in the Warner case, Sotomayor said she was "deeply troubled by this evidence suggesting that midazolam cannot be constitutionally used as the 1st drug in a 3-drug lethal injection protocol."
The inmates want the court to decide whether its 2008 decision in a case called Baze v. Rees in which the justices upheld the three-drug execution protocol used by Kentucky applies to Oklahoma's procedures. Lawyers for the inmates say that the Oklahoma protocol is different, so the reasoning of the 2008 ruling should not apply.
The inmates are Richard Glossip, John Grant and Benjamin Cole. Glossip, who arranged for his employer to be beaten to death, is scheduled to be executed on Jan. 29. Grant, who stabbed a correctional worker to death, is due to be put to death on Feb. 19. Cole, convicted of killing his 9-month-old daughter, is scheduled to be executed on March 5.
The brief court order did not note whether the court had agreed to stay the executions.
The case will be argued in April, with a decision due by the end of June.
Source: Reuters, January 24, 2015
The botched executions behind the Supreme Court case on lethal injection
Late Friday afternoon, the Supreme Court announced it would review lethal injection procedures used for many death row inmates across the country after a few of botched executions raised concerns about whether the procedure is unconstitutional.
Those problematic executions include Clayton Lockett, an Oklahoma inmate in April who died of a heart attack 43 minutes after the lethal injection process was started. After the 1st of a 3-drug cocktail was supposed to make him unconscious, Lockett began writhing on the gurney. Months earlier in Ohio, Dennis McGuire struggled and choked for several minutes and took nearly 25 minutes to die from the lethal injection. Arizona inmate Joseph R. Wood took nearly 2 hours to die, with witnesses saying he gasped and snorted for much of it. Other cases of problematic executions have been reported.
The question before the court now is whether the lethal injection protocol, which has undergone unexpected changes in the past few years, amounts to cruel and unusual punishment.
How lethal injection has changed
Until a few years ago, most lethal injections used a three-drug combination - an anesthetic, a paralytic drug and a drug stopping the heart. The most common anesthetic used was sodium thiopental, but in 2011, its sole manufacturer said it would no longer make it after Italian officials banned export of the drug for capital punishment. So states started using a different anesthetic, pentobarbital - until its manufacturer, a Danish company known as Lundbeck, protested its use in executions.
In turn, states started using new and untested combinations to carry out lethal injections, which is still the main method of executions in the United States. A Germany company said it would stop providing its anesthetic for lethal injections, and a compounding pharmacy last year refused to provide drugs to execute a Missouri inmate.
There's been a high level of secrecy
There's also been secrecy about where and how states are getting these new drugs. As my colleagues reported last April, following Lockett's execution:
In their scramble to carry out death sentences, prison officials from different states have made secret handoffs of lethal-injection drugs. State workers have carried stacks of cash into unregulated compounding pharmacies to purchase chemicals for executions. Some states, like Oklahoma, have relied on unproven drug cocktails, all while saying they must conceal the source of the drugs involved to protect suppliers from legal action and harassment.
"It looks like a street-level drug deal," said Dean Sanderford, a lawyer for Lockett. "And they're keeping all the information secret from us. .?.?. They don't need to be carrying out any more executions until they come clean, until we know exactly what happened with Clayton's execution and everything about these drugs, where they're getting them."
What's changed in Oklahoma
After a review of Lockett's death, Oklahoma a few months ago announced changes to its lethal injection procedure. The state says it will now use 5 times as much of the sedative midazolam, which it used for the 1st time in Lockett's execution last year. The state last week executed its 1st inmate since Lockett, and there were no apparent signs of distress.
What other states have done
The high-profile botched executions haven't changed much for states around the country. As the Boston Globe reported last month, some states are looking at other ways of executing death row inmates. Oklahoma is apparently looking at becoming the first state to use "forced deprivation of oxygen," while Tennessee may bring back the electric chair and Utah may reinstate the firing squad, according to the Globe.
Support for the death penalty is down
Nationwide support for the death penalty has been declining, but at least 60 % of people still favor it. After series of botched executions, pollsters expressed doubt those incidents would change public attitudes in a significant way. Still, at least 6 states have abolished the death penalty since 2007, and 18 states in total ban it.
Source: Washington Post, January 24, 2015
