High court to review Oklahoma protocol and decide whether three-drug process used by prison officials violates ban on cruel and unusual punishment

The US supreme court agreed on Friday to consider a challenge to the controversial experimental execution protocol used by Oklahoma in a case that was brought by four death row inmates, one of whom was executed last week.

The decision of the nation’s highest court to take up a petition brought by three inmates and Charles Warner, who was executed last Thursday, marks a turning point in the most significant legal debate around lethal injection drugs since the modern death penalty system began to unravel in the face of a European boycott.

Since 2011, most drugs conventionally used by corrections departments to kill prisoners have run in short supply as a result of the boycott, and states that use the death penalty have been turning to increasingly creative alternatives to keep their death chambers open.

Dale Baich, the lawyer for Charles Warner who also represents the three inmates whose executions are pending in Oklahoma, said he would now be pressing for stays of executions in all their cases. “We are pleased that the court is going to review this case,” he told the Guardian. “There has been a dramatic shift in how the states carry out lethal injections since the last time the court looked at this issue.”

In Oklahoma, the state used a three-drug cocktail of the sedative midazolam, paralytic vecuronium bromide and potassium to stop the heart. Experts in anesthetics have warned that midazolam is a drug that is unreliable for inducing a coma, while the use of a paralytic could disguise that an inmate was suffering cruel and unusual punishment.

Warner, and three other Oklahoma prisoners facing imminent death, petitioned the courts to halt their executions while the state’s experimental cocktail was subjected to proper analysis. Last week, the US supreme court declined to take the case; Warner was put to death shortly thereafter.

His last words were: “It hurts … It feels like acid,” though by some accounts he said those comments before the drugs had started to flow.

In a dissenting opinion last week, supreme court justice Sonia Sotomayor, who sits on the liberal wing of the court, gave a blistering critique of Oklahoma’s new drug protocol. She scathingly noted that the state’s rebuttal to Warner’s petition had depended largely on a scientific expert who claimed that midazolam was effective in executions but had cited no studies, but instead appeared to have drawn his information from the website drugs.com.

Sotomayor said she was “deeply troubled” by the known properties of midazolam. “It is true that we give deference to the district courts. But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed,” she wrote.



Sotomayor’s opinion was joined by her fellow liberal justices, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

Concern around Oklahoma’s use of midazolam first erupted after the execution last April of Clayton Lockett, who writhed and groaned on the gurney for 43 minutes. Midazolam was also used in botched executions last year in Ohio and Arizona.

The last time the highest court in the US considered lethal injections, in 2008, the justices ruled that medical drugs were a lawful means of executing prisoners within the constitutional bounds set by the eighth amendment prohibition of cruel and unusual punishment. But that was before the boycott of medical drugs for use in the death penalty had begun, and before the use of midazolam.

The next scheduled execution in Oklahoma is of Richard Glossip on 29 January. His fellow petitioners, John Grant and Benjamin Cole, are set to die on 19 February and 5 March respectively, using the same midazolam-vecuronium-potassium cocktail. His other fellow petitioner is dead.