The Supreme Court on Friday agreed to take up a case concerning the lethal injection protocol that left an inmate in Oklahoma to die slowly and gasping for breath last year.
The case, which is likely to be heard this term, was brought by inmates who claim the state protocol violates the Constitution’s prohibition on cruel and unusual punishment and could open a new chapter in the ongoing battle over the patchwork system of execution procedures in the United States.
“Petitioners are pleased that the Supreme Court will review their case,” said Dale Baich, one of the attorneys representing the death row inmates. In a statement, Baich said that the protocol is “not capable of producing a humane execution, even if administered properly. ”
An original plaintiff in the case, Charles F. Warner, was put to death last week. Another plaintiff, Richard E. Glossip, is set to die on January 29.
It was just nine months ago that Oklahoma botched the execution of Clayton Lockett using the same protocol.
But Oklahoma Attorney General Scott Pruitt defended the state’s lethal injection procedure in a statement Friday.
“Oklahoma’s execution protocol has been affirmed as constitutional by two federal courts and has successfully been implemented in Oklahoma, as well as more than 10 similar executions in Florida,” he said. “We will continue to defend the constitutionality of this protocol in order to preserve DOC’s ability to proceed with the sentences that were given to each inmate by a jury of their peers.”
In 2008 — in a case called Baze v. Rees — the court found Kentucky’s lethal injection protocol constitutional, but since then, as they struggle to locate lethal injection drugs, many states have changed their protocols and have experimented with different drugs.
In court papers, Baich asked the justices to take up the case to “revisit Baze v. Rees because the lethal injection landscape has changed significantly in the last seven years.”
“The time is right for the court to take a careful look at this important issue,” Baich said.
Oklahoma uses an intravenous injection of midazolam meant to cause unconsciousness, followed by rocuronium bromide, which works as a paralytic, and then potassium chloride that serves as a heart-stopping agent. Critics of Oklahoma’s protocol say that the first drug, midazolam, is not FDA approved as a general anesthetic. They say midazolam fails to maintain unconsciousness.
Florida, Oklahoma, Alabama and Virginia use the same three-drug protocol that includes midazolam, according to Megan McCracken, a death penalty expert at U.C. Berkeley’s Boalt Hall School of Law. Other states such as Ohio and Arizona have used the drug in a two-drug combination. Ohio recently abandoned the use Midazolam after the execution of Dennis McGuire.
“What’s at issue here is the use of midazolam and whether it is at all appropriate for execution,” said McCracken. “There have only been three executions where the prisoner was not paralyzed after the administration of mid and all three went horribly awry, raising serious concerns about the drug and whether it allow humane execution,” she said.
