Supreme Court will review use of lethal injections

Richard Wolf | USA TODAY

WASHINGTON -- In a case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment.

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will be heard in late April and decided by late June.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say Inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.

That, they claim, was a factor in Oklahoma's botched execution last April of Clayton Lockett, who struggled, groaned and writhed in pain for 43 minutes before dying. A state investigation later blamed Lockett's ordeal on a failure by prison staff to realize that drugs had not been administered directly into his veins. The state has since changed its procedures and increased the dose of midazolam used.

"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 drugs protocols," said Dale Baich, one of the lawyers representing the death-row inmates.

'MY BODY IS ON FIRE'

Warner's execution last Thursday was the first in Oklahoma since Lockett's. The execution lasted 18 minutes, during which Warner, 47, convicted in the murder and rape of an 11-month-old girl in 1997, said the injection "feels like acid" and "my body is on fire." Witnesses said they saw only slight twitching in Warner's neck for about seven minutes before he stopped breathing.

The prisoners' lawyers also blame the drug protocol for two other gruesome deaths -- the execution a year ago of Ohio's Dennis McGuire, who made snorting noises for 20 minutes before dying, and July's execution of Arizona's Joseph Wood, who appeared to gasp hundreds of times during a death that took nearly two hours.

However, Florida has had fewer issues with the same drug protocol. On the day Warner was executed, it used the same three-drug combination to execute Johnny Shane Kormondy, 42, who killed a man during a 1993 home invasion.

Lawyers for Oklahoma responded that there was no real evidence midazolam would not work as a general anesthetic. They noted that it had been used successfully in at least 10 previous executions.

"It is undisputed that Oklahoma's protocol, which is identical to Florida's protocol, has been used 10 times in executions without serious incident," the state argued in its brief. "Petitioners can only cite to executions that took place using different drug combinations, or the Oklahoma execution of offender Lockett, in which IV access was subsequently found to be insufficient and flawed."

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in trying to block Warner's execution last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Sotomayor wrote. "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."

Then, tellingly, she added, "I hope that our failure to act today does not portend our unwillingness to consider these questions."

The number of executions in the USA peaked at 98 in 1999, then dropped to 35 by last year, according to the Death Penalty Information Center. Four prisoners have been executed so far this year.

Although the death penalty remains on the books in 36 states, a half dozen of them account for nearly all the recent executions in the United States: Texas, Florida, Oklahoma, Missouri, Arizona and Ohio. Texas and Missouri do not use midazolam.

A FLURRY OF EXECUTIONS?

The next three prisoners set for execution in Oklahoma are Richard Glossip, John Grant and Benjamin Cole. Now, presumably, their executions -- including one set for next Thursday -- will be blocked while the Supreme Court considers their case.

In recent years, states that regularly carry out executions have been scrambling to find the drugs needed to carry out the death penalty. The preferred first drug had been sodium thiopental, a fast-action barbiturate no longer in supply as drugmakers and pharmacies -- particularly in Europe, where the death penalty is widely opposed -- have cut off production. Some states, such as Texas and Missouri, use pentobarbital alone or in combination with other drugs.

States that substituted midazolam, a psychoactive drug used as an anti-seizure medication and for sedation, have run into the most problems. According to the Death Penalty Information Center, at least seven states rely on midazolam.

The justices ruled in 2008 that using three drugs in succession to kill an inmate does not violate the Constitution's ban on cruel and unusual punishment. The first drug would render the inmate unconscious, a second would paralyze him and a third would stop the heart. But at the time, the drug supply was more reliable.

During the past year, the court has appeared increasingly wary of the death penalty, for a variety of reasons:

• In May, the justices blocked the execution of a Missouri murderer because his specific medical condition made it likely that he would suffer from a controversial lethal injection.

• Later that month, they ruled 5-4 that Florida must apply a margin of error to IQ tests, making it harder for states to execute those with borderline intellectual disabilities.

• In October, the court stopped the execution of yet another Missouri man over concerns that his lawyers were ineffective and had missed a deadline for an appeal. Last Monday, the justices sent his case back to Missouri for further consideration.