The US Supreme Court agreed on Friday to examine whether the three-drug protocol being used for capital punishment in Oklahoma violates the Eighth Amendment prohibition on cruel and unusual execution methods.
At issue in the case is whether the first drug injected into the condemned prisoner’s body, midazolam, is capable of rendering the inmate reliably unconscious before the following two drugs are administered.
Under the three-drug protocol used in Oklahoma, the first drug is used to make the prisoner unconscious. The second drug, vecuronium bromide, is used to paralyze the body. The third drug, potassium chloride, is deployed in the final stage to stop the heart.
If all three drugs work together, the inmate should appear to fall asleep and die.
But botched executions in several states suggest the ordeal may be anything but peaceful. Experts say that if the first drug fails to render the inmate into an extended, coma-like level of unconsciousness, the prisoner may awaken and experience excruciating pain as the other two drugs are administered.
In April 2014, for example, Oklahoma death row inmate Clayton Lockett awoke in the middle of the execution process and writhed in pain as officials scrambled to discover what had gone wrong. It took 40 minutes for Mr. Lockett to die.
Similar episodes involving midazolam were observed during executions in Ohio in January 2014 and in Arizona in July 2014. The Arizona execution took nearly two hours with the inmate gasping more than 640 times, according to a reporter who witnessed the execution.
Oklahoma officials later issued a report about the Lockett execution. They concluded that the first drug was not being effectively injected into Lockett’s bloodstream. They revised their protocols, increased the dosage of midazolam, and sought to resume executions.
That’s when the four inmates filed a lawsuit seeking a judicial examination Oklahoma’s capital punishment protocol. A federal judge and a federal appeals court upheld the state’s procedures.
The inmates then filed their petition asking the US Supreme Court to examine the Oklahoma protocol.
Their petition was pending last week, when the first of the four inmates, Charles Warner, was scheduled to be put to death. For reasons that remain unclear, the high court declined to intervene on Jan. 15 and Mr. Warner was, in fact, executed.
Justice Sonia Sotomayor wrote a dissent of the high court’s refusal to issue a stay of execution. Three other members of the court, Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan joined the dissent.
“Petitioners have committed horrific crimes, and should be punished,” Justice Sotomayor wrote in her eight-page dissent. “But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.”
She added: “I hope that our failure to act today does not portend our unwillingness to consider these questions.”
There is no indication in the court’s brief order how many justices agreed to take up the Oklahoma case. The votes of four justices are required to grant a petition.
The case will likely be argued in April with a decision handed down by late June.
Dale Baich, one of the attorneys representing the Oklahoma inmates, said the inmates were pleased that the court had agreed to decide the execution process.
“The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly,” Mr. Baich said in a statement.
“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 drug protocols,” he said.
The case is Glossip v. Gross (14-7955).