Criminal Attorney Oklahoma Defense Lawyer Adam R. Banner OKLAHOMA CRIMINAL DEFENSE ATTORNEY AT LAW

The Oklahoma Legal Group Blog

U.S. Supreme Court to Review Lethal Injection Protocol

Adam Banner - Monday, January 26, 2015

The decision came too late to save Charles Warner. On January 15, Warner was executed by lethal injection on Oklahoma's death row after the United States Supreme Court refused to grant a stay of execution. The Supreme Court said that it would not review whether or not the use of a particular drug used in a lethal injection protocol for the execution of inmates was a violation of the Eighth Amendment right to be free from cruel and unusual punishment.

Before Warner was injected with the drugs that would ultimately kill him, he told observers, "Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid." After the lethal cocktail was injected into his veins, he said, "My body is on fire." Reports say he showed no obvious signs of distress, despite his complaints, but that his neck began twitching about 3 minutes after he was injected and continued for approximately 7 minutes until he died.

Warner was one of the Oklahoma inmates who filed a lawsuit against the state regarding its policy of shielding the source of the drugs used in its lethal injection cocktail. That lawsuit pitted the state's two high courts against each other, but ultimately, the courts decided that not disclosing the source of the drugs was not a violation of the inmates' rights. Charles Warner and his fellow plaintiff Clayton Lockett were scheduled to die on the same night in April.

But that night, something went horribly wrong. A failure with an IV line led to the drugs being improperly administered into Lockett. He writhed in agony and tried to get up off the gurney. The execution was called off, and Lockett died of a heart attack 45 minutes later. Warner's execution was delayed, and he and other inmates again tried to block the state's executions. Warner requested a stay of execution from the U.S. Supreme Court, as he and 3 other Oklahoma inmates asked them to consider that the use of midazolam in lethal injections was tantamount to cruel and unusual punishment. The Supreme Court rejected his request for a stay, and Warner's execution proceeded.

Apparently, however, the Supreme Court was not convinced that they should not consider the use of midazolam in lethal injections. On Friday, approximately one week after Warner's death, the Court agreed to hear the remaining inmates' petition. Four justices dissented in allowing Warner's execution to proceed, and it takes only four votes to accept a case.

Because of the Court's acceptance of the case, another Oklahoma inmate scheduled to die this month may get at least a temporary reprieve. Richard Glossip's execution is set for January 29. Now, he can ask the high court for a stay of execution while they consider whether the lethal injection protocol is a violation of the 8th amendment.

In 2008, the Supreme Court upheld Kentucky's use of a three-drug protocol that was used in virtually every state with the death penalty. Now, the protocol has changed, and many states, including Oklahoma, are replacing hard-to-get drugs like pentobarbital with midazolam, a sedative. But midazolam has been used in some of the most horrific lethal injection executions in the United States:

  • Dennis McGuire, who was put to death in Ohio last year, and who gasped and choked for 10 minutes after being injected before finally ending his suffering in death 26 minutes later.
  • Clayton Lockett, whose drugs were improperly administered and who died of a heart attack 45 minutes after being injected.
  • Joseph Wood, who was executed in Arizona in July. He was injected 15 times, gasped "hundreds" of times, and took an astonishing two hours to die.

Critics of the use of midazolam in lethal injection say it is untested, experimental, and not proven to effectively sedate an inmate so that he or she will not suffer physical pain when the other drugs stop an inmate's breathing and heart.

The states fighting the lawsuit point to the "successful" use of the drug in more executions than were "botched."

Still, the Court has decided that it must, in the interest of justice and the preservation of constitutional rights, at least consider the case. 

In dissenting with the majority opinion to let Warner's execution proceed earlier this month, Justice Sonia Sotomayor wrote, "The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution. Petitioners have committed horrific crimes and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death."

The appeal to the Supreme Court came after the 10th Circuit Court of Appeals ruled against the petitioners, saying that the Supreme Court had never invalidated a method of execution as "cruel and unusual," and that the high court's 2008 decision regarding the 3-drug protocol in Kentucky did not stipulate that the protocol could not be altered.

In appealing the 10th Circuit Court's decision, the Oklahoma inmates argued that the lower court's ruling "cannot be reconciled with this Court’s requirement that a constitutional three-drug protocol must include a first drug that reliably creates a deep, comalike unconsciousness.”

The Supreme Court's decision to hear the case will likely put a halt to executions in the United States until the case is resolved. Whatever decision the Court makes, it could have a lasting and profound impact on criminal justice in regard to the Eighth Amendment.

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