The search for new methods of execution, including a cocktail using midazolam, stems from growing reluctance by pharmaceutical companies to provide barbiturates and other drugs for executions. Some states have turned to compounding pharmacies.

Dale Baich, one of the attorneys for inmates bringing Oklahoma’s challenge, said Oklahoma and other states have touted improvements in their execution process by requiring more training and contingency plans.

“That’s just window dressing, because what’s really at issue here is the drug that’s being used, and there’s nothing in the protocol that discusses monitoring sedation of the prisoner after the check is done,” Baich said.

Although Kentucky’s case sets the current legal standard for executions that comply with the Eighth Amendment, which bans “cruel and unusual punishment,” that state hasn’t executed the plaintiffs in the case. One of them died recently in prison while the legal battle was grinding on.

Attorneys representing the death row inmates in Glossip v. Gross have argued midazolam is a sedative that can leave inmates conscious after they’re supposed to be insensate, which is what happened in Clayton Lockett’s 43-minute execution.

Ironically, the court’s oral arguments are scheduled for April 29, exactly one year after Lockett’s botched execution.

Lockett was the first Oklahoma inmate to receive midazolam as the first drug in a three-step lethal injection. He rose up off the gurney and began speaking after he had been declared unconscious. The 10th Circuit Court of Appeals later called his execution “a procedural disaster.”

Midazolam was also used in problematic executions in Arizona and Ohio in 2014. However, Oklahoma executed Warner in January using midazolam without incident, according to witnesses.

Although a state investigation blamed a leaky IV for the failures in Lockett’s execution, some medical experts have questioned the use of midazolam in executions because it is not a true anesthetic.

Attorneys for the state of Oklahoma have argued in filings that its execution process is “the most humane form of execution available to the state.”

Those attorneys have argued that lower courts have determined the drug is “highly likely” to render inmates unconscious, and that finding is “well-supported by the record and medical literature.”

State officials blame death penalty opponents for cutting off supplies of the drugs previously used to render inmates unconscious in Oklahoma executions: sodium thiopental and pentobarbital.

Attorney General Scott Pruitt has said previously that he is “confident” the Supreme Court will affirm Oklahoma’s execution procedures.

“The state of Oklahoma is vested with the extraordinary responsibility of carrying out the sentences of death handed out by its citizens as punishment for the most heinous of crimes. As such, Oklahoma officials take seriously their duty to carry out those sentences in a humane and dignified manner,” Pruitt said.

Last month, in one of several briefs filed in support of the death row inmates’ challenge to midazolam, at least one former Oklahoma attorney general signed a document criticizing Oklahoma’s use of the drug.

Robert Henry, who was attorney general from 1987 to 1991 and later was a federal appeals court judge, said state lawyers picked an inappropriate drug for lethal injection because they were on a tight deadline and under political pressure.

“Oklahoma’s hasty, non-science-driven process for selecting midazolam as the first drug in its three-drug protocol did not cohere with its solemn duty to ensure its punishments are lawful,” argued Henry, now president of Oklahoma City University.

The Supreme Court has granted a stay to inmates Glossip, Grant and Cole until the case is decided.

In a law journal preview, Steven D. Schwinn, associate professor of law at The John Marshall Law School, summed up the possible role the Glossip ruling will play in states’ ability to carry out executions.

“Just to be clear: This case does not test the constitutionality of
the death penalty itself, but instead tests the constitutionality of a particular drug protocol in administering the death penalty. It also tests the standards by which courts should evaluate challenges to a particular method of execution.

“But as states continue to have problems obtaining sodium thiopental and similar barbiturates, and as they therefore increasingly look to alternative drug protocols and other methods of execution, these standards will become increasingly important in death penalty challenges. In this way, even though Glossip does not test the death penalty itself, the Court’s ruling will, as a practical matter, put a heavy thumb on the scale either for or against the death penalty.”