The petitioners in the case, Glossip v. Gross, No. 14-7955, are three death row inmates from Oklahoma. A fourth petitioner, Charles F. Warner, was put to death on January 15, after the Supreme Court declined a late-hour appeal to stay the execution.
— SCOTUSblog (@SCOTUSblog) January 23, 2015
After a botched execution in April 2014, critics have called into question the legality of lethal drug cocktails. Clayton D. Lockett was seen by execution witnesses to moan and gasp for air for 43 minutes before finally dying in the execution chamber.
Oklahoma suspended lethal injections while they reviewed their procedures after the incident with Lockett, but resumed them after determining the chemical in question — a sedative — would work effectively at a higher dose.
One of the petitioners, Richard Glossip, is scheduled to be executed next week and attorney Dale Baich says they will file for a stay, despite the unsuccessful attempt to get a stay for Warner.
“The argument will be that since the court has decided it will hear the case, that’s a new circumstance that would warrant a stay,” he said.
This is the first time since 2008, when the court rejected a challenge to lethal injections, that the Supreme Court will hear a case concerning the death penalty.
"The time is right for the Court to take a careful look at this important issue,” Baich said in a statement. “Particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols."
— Sister Helen Prejean (@helenprejean) January 23, 2015
The drug currently in question is a sedative, midazolam, which Oklahoma began to use after a shortage of the traditional drug approved in the 2008 case, Baze v. Rees. It was also used in botched executions in Arizona and Ohio in 2014. Other states are currently using a variety of largely untested drug cocktails, whose exact composition is often kept secret.
The shortages of the previous sedative began when overseas manufacturers, based in countries that have banned the death penalty, objected to its use in executions.
A sedative is the first of three drugs administered in a lethal injection execution. The second is a paralytic, and the final drug stops the heart.
"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," said the state’s attorney general Scott Pruitt in a statement Friday.
"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 her dissent from the rejection of Warner’s stay, liberal Justice Sonia Sotomayor, said 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," she wrote."But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death."
The second concern Sotomayor raised was whether a prisoner’s right to challenge an execution method should depend on their supplying a better alternative. The 2008 ruling had asserted that some pain was inevitable in any execution method and that petitioners had failed to present a more humane process.
“It would be odd if the constitutionality of being burned alive, for example, turned on a challenger’s ability to point to an available guillotine,” Justice Sotomayor wrote.
The other petitioners are John Grant, who stabbed a correctional worker to death, and Benjamin Cole, convicted of murdering his 9-month-old daughter. Glossip was convicted of a contract murder.
Along with Glossip, whose execution is scheduled for Jan. 29, Grant’s execution is set for Feb. 19 and Cole’s for March 5.
The Supreme Court will likely hear the case in April.
