At 10 a.m. Wednesday, the final day of oral arguments this Term, the Supreme Court will hold a one-hour hearing on an Oklahoma death penalty case that could range widely over broad constitutional questions, or — in the alternative — focus very narrowly on one very specific execution method. Arguing for the three death-row inmates in the case of Glossip v. Gross will be Robin C. Konrad, a federal public defender from Phoenix. Representing Oklahoma will be its solicitor general, Patrick R. Wyrick, of Oklahoma City. Each will have thirty minutes of time.

Background

In an era when botched executions of death-row inmates happen more often, raising new questions about capital punishment, the Supreme Court continues to rely upon a set of legal principles about lethal-drug protocols that have not been reexamined in seven years. The Justices have given themselves the opportunity to do so next week when they hear an Oklahoma case, but just how far they are prepared to go to reopen those principles probably will only be clear as the oral argument unfolds.

In one sense, the case of Glossip v. Gross is focused on the use of a single drug in a three-drug execution “cocktail” — a sedative, the first dose, that is supposed to put the inmate in a sufficiently deep state of unconsciousness that there will be no pain, or at least only tolerable pain, from injections of the other two drugs, which paralyze and then kill. But in another sense, the entire constitutional structure surrounding execution by lethal drugs could be at stake.

Since the Court’s 1976 decision in Gregg v. Georgia, allowing states to resume capital punishment after a four-year moratorium, states have executed 1,232 inmates using some version of a lethal-drug protocol. That is the preferred method now in thirty-four states, the federal prison system, and the U.S. military.

After a recent flurry of flawed executions using lethal drugs, some states are adopting alternative methods — including, in some states, a potential return to the firing squad. Whether they actually turn to such alternatives may well depend upon how the Supreme Court decides the Oklahoma case.

The basic lethal-injection approach, using three different drugs, gained the Supreme Court’s approval in a widely splintered decision in 2008, the Kentucky case of Baze v. Rees. Because of the division among the Justices, the votes of only three Justices controlled the outcome: Chief Justice John G. Roberts, Jr., and Justices Samuel A. Alito, Jr., and Anthony M. Kennedy.

That opinion established these legal rules: first, an execution method only violates the Eighth Amendment’s ban on cruel and unusual punishment if there is “a substantial and objectively intolerable risk of serious harm” to the inmate; and, second, a state may violate that amendment if it refuses to adopt an alternative method that is shown to be feasible, readily implemented, and in fact significantly reduces the risk of serious pain during the procedure. Some lower courts have interpreted the Baze decision as imposing on the inmate personally the legal duty to propose such an alternative approach — a task that requires considerable medical and chemical knowledge.

In addition, some lower courts have read the Baze ruling as making it significantly more difficult for an inmate facing execution by lethal drug to get a postponement until the method’s constitutionality could be challenged in court. Those courts have suggested that no delays will be granted unless there is a clear risk of pain from the particular protocol, when compared with that which would result if an alternative were used.

All of those aspects of the Baze decision itself, and lower courts’ interpretations of it, have been put before the Justices in the three questions raised by the three Oklahoma inmates’ lawyers: first, is it unconstitutional for a state to use a sedative instead of an actual anesthetic as the first drug when the sedative will not reliably produce a sufficiently deep unconsciousness to make the other two drugs’ effects bearable; second, whether death-row inmates will continue to be very unlikely to get a delay of an execution under the interpretation of the Baze ruling if a different drug protocol from the one that Baze approved is now used; and, third, whether the prisoner must carry the duty to suggest a better available alternative even if the one the state uses would fail the Eighth Amendment.

The first of those questions — sedative vs. aesthetic — is the issue that has the potential to make this case a test of only one drug in the protocol.

In Oklahoma, that first drug is midazolam hydrochloride (usually shortened in discussion to midazolam). This drug is usually prescribed as an anti-anxiety preparation. The inmates’ lawyers contend that the federal Food and Drug Administration has not approved the use of midazolam as an anesthetic for surgery, and they argue that it has a “ceiling effect” so that, once it reaches that point, even increasing the dosage will not produce any greater level of unconsciousness.

Oklahoma and three other state have turned to midazolam as the first drug in the lethal-injection execution process, because the long-preferred first drug — sodium thiopental — is no longer available. The manufacturers of that drug have simply stopped making it available for use in executions, and states have had to look for alternative preparations. (Sodium thiopental was the first drug in the protocol that the Supreme Court upheld in the Baze decision, which means that there is no state using the actual protocol which withstood that constitutional test.) After the availability of sodium thiopental ended, some states turned to another first-drug choice — another deep coma-producing barbiturate, pentobarbital — but that too, is no longer available, or only available in very short supply.

One odd thing about the Oklahoma case, as it now stands before the Court, is that the state used that very preparation as the first drug on January 15 when it carried out — without apparent incident — the execution of death-row inmate Charles F. Warner. (Oklahoma actually first made use of midazolam in the execution of Clayton Lockett in April last year — a badly botched execution.)

Charles Warner, in fact, was one of four inmates involved in what has now become known as the Glossip case. When the case reached the Court, Warner was the lead inmate in it. When the Court refused to delay Warner’s execution (over the dissent of four Justices) in mid-January, the denial order presumably applied to all four of them, although Warner’s was the only execution scheduled that night. The Court did not act on the actual appeal of the other three inmates, testing Oklahoma’s protocol, at that point.

Eight days after Warner was put to death, the Court granted review of the constitutional issues raised in the case, now under the Glossip v. Gross caption and involving the three remaining inmates. Oddly, however, it did not at that point postpone the execution of the other three inmates — Richard Glossip, John Grant, and Benjamin Cole. State officials then asked it to do so. The delay order issued by the Justices came on January 28.

In the order, the Court said only that the three inmates’ executions were being delayed only if they would involve the use of midazolam as the first drug in the protocol. Oklahoma has since adopted a series of alternative protocols, beginning with lethal injection and then moving to nitrogen gas, the electric chair, or the firing squad, to be used in that order if a more preferred method is struck down in court or is no longer available, as with the absence of a lethal drug.

Those rather unusual maneuverings in the Court’s handling of the case have added to the uncertainty of just what mission the Justices have assigned themselves. The lawyers involved on both sides of the case have continued to move forward with written legal arguments as if the entire range of Baze questions were actually before the Court and could potentially be decided.

Briefs on the merits

The Oklahoma inmates’ brief on the merits is heavily focused on the drug midazolam, with a two-pronged attack: a general denunciation of it, on scientific grounds, as incapable of producing a coma-like unconsciousness as the first step in execution, and then a specific disagreement with the trial judge’s conclusions that raising the dosage to 500 milligrams is going to produce the necessary unconsciousness. The judge, the inmates assert, simply had no scientific evidence to support his endorsement of midazalom as the first drug.

Next, the inmates attempt to persuade the Court that there is no need — and none should be read into the Baze opinion — for a different legal standard to determine when a challenged execution should be put on hold until the challenge is resolved. If, however, the Court is going to embrace a higher standard for postponements in executions, the inmates argued, it should only be used when a lethal injection method is not clearly unconstitutional, but an inmate seeks to come up with a suggested fail-safe alternative. If all that is at issue in a death-row inmate’s challenge is the constitutionality of the state’s chosen method of lethal injection, the inmates should be granted a delay of execution to test their claim, they contended.

Finally, the inmates sought to head off any requirement that they be personally required to propose a constitutional alternative, when a state’s protocol is challenged as cruel and unusual punishment under the Eighth Amendment. It is not their duty to find correctives for the state’s constitutional violations, they asserted.

Oklahoma’s merits briefs boldly suggests that it was a mistake for the Court to grant review of any aspect of this case, urging it to dismiss it without further review. The challenge, the state argues, is simply a dispute over how two lower federal courts resolved disputed factual issues about how midazalom works, and over how two lower federal courts simply applied prevailing capital punishment law in turning aside the inmates’ challenge.

The petition, the state contended, presents “no issues appropriate for resolution by this Court,” and thus should be “dismissed as improvidently granted” — the technique the Court uses to dispose of a case after discovering that it did not involve any issue worthy of the Justices’ time.

The inmates’ objections to the chemical properties of midazalom, the state said, are “little more than theoretical speculation” or are mere “quibbles.” That is not the kind of disagreement with which the Court need be bothered, according to the state.

Beyond the suggestion that the case be dismissed, the state asserted that there is no need for the Court to reopen the issues that it settled in the Baze decision, because that ruling not only dealt with the specifics of the Kentucky protocol, but laid out the legal principles that would be applied for alternatives to that.

On the burden that the inmates’ lawyers have challenged, for the inmate to come up with an alternative protocol to the one Oklahoma uses, the state said that because capital punishment is itself constitutional, and because states must have some way of carrying it out in practice, it should be up to challengers to come forward with an improved way to execute the condemned. Otherwise, inmates would simply be trying to scuttle capital punishment itself, and that is already a closed issue in the states’ favor.

The inmates have the amicus support of human rights groups, former attorneys general arguing that Oklahoma and other states are rushing to find questionable alternative protocols, religion and ethics organizations, various organizations concerned about the scientific foundation for the new round of execution protocols, and a group of pharmacology professors who mounted a strong critique of the inadequacies of midazalom in inducing unconsciousness.

Oklahoma has support from fourteen other states, along with a legal advocacy group, the Criminal Justice Legal Foundation.

Recommended Citation: Lyle Denniston, Argument preview: Execution methods: broad or narrow look?, SCOTUSblog (Apr. 25, 2015, 12:03 AM), https://www.scotusblog.com/2015/04/argument-preview-execution-methods-broad-or-narrow-look/