The nation’s current legal standard for carrying out the death penalty could turn on a single justice’s vote after the U.S. Supreme Court hears arguments on Wednesday in a challenge brought by Oklahoma death row inmates.
The arguments in the case, known as Glossip v. Gross, will focus on three relatively narrow issues. But the decision could have a sweeping impact on the death penalty nationwide if it results in removal of a controversial drug, midazolam, from the list of drugs available for use in executions.
U.S. SUPREME COURT HEARING
Case: Glossip V. Gross
When: 10 a.m. Wed., April 29
Arguing for petitioners: Robin Konrad, Arizona office of the Federal Public Defender
Arguing for respondents: Patrick Wyrick, solicitor general of Oklahoma
Decision expected: Mid to late June.
At the heart of the challenge is whether midazolam, which is a sedative, can induce the same “comalike state” in people as pentobarbital and other anesthetics have done during executions for decades.
The Oklahoma death-row inmates bringing the suit – Richard E. Glossip, John M. Grant and Benjamin R. Cole Sr. – argue that midazolam can leave inmates conscious during executions.
Deborah Denno, a Fordham University law professor specializing in death penalty issues, said the court’s decision in Glossip could provide some needed clarity after years of “pandemonium” following a 2008 ruling by the court.
The court will consider three questions in the Glossip case:
* Whether a state can use a three-drug protocol if a scientific consensus exists that the first drug “cannot reliably produce deep, comalike unconsciousness.” Although midazolam is the drug at issue, the court’s decision could apply to other drugs that states may turn to in the future.
* Whether the state’s protocol is “substantially similar” to the three-drug protocol at issue in the 2008 case, Baze v. Rees, out of Kentucky, in which the court upheld that method of lethal injection.
* Whether inmates must identify an alternate method of execution if the preferred method is not available. The inmates in the case raised this question because of language in Baze v. Rees that discusses whether a drug used in executions presents a risk of severe pain that is “substantial when compared to the known and available alternatives.”
The court’s decision is expected to break down along lines close to those in its 5-4 vote in January denying a stay of execution to Oklahoma death row inmate Charles Warner. Warner was executed Jan. 15.
Justices Sonya Sotomayor, Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, the court’s liberal wing, voted for a stay in Warner’s case, which raised essentially the same issues as those in the Glossip case.
Court watchers agree that four conservative justices are unlikely to vote in favor of the inmates’ challenge to Oklahoma’s protocol. That leaves one justice, Anthony Kennedy, as the possible swing vote in the case, Denno said.
Although it’s difficult to predict how such complex cases will be decided, Denno said those on all sides of the issue hope for a clearer standard than the current one.
In the Baze v. Rees decision, the high court ruled that any state using a protocol that is substantially similar to the one used in Kentucky was acceptable.
“The petitioners are now saying it is not substantially similar, so Baze doesn’t apply. I consider that a pretty important discussion,” Denno said.
“I am anticipating a court that is much more aware of these drugs, much more aware of the lethal injection process.”
Even before the court rules on the Oklahoma challenge, states have reacted to the legal uncertainty it has created. Oklahoma is one of five states using midazolam for lethal injections. Several states have ceased executions until the case is decided.
In Oklahoma this year, lawmakers passed and Gov. Mary Fallin signed into law a bill that allows executions by nitrogen gas. Utah brought back the possibility of a firing squad while Tennessee legalized the electric chair.