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.


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.”

Charles F. Warner, Jr., convicted of raping and murdering an 11-month-old child, was originally scheduled to be executed on the same day as Clayton Lockett. After Lockett's execution went awry, Warner's execution was delayed. He was put to death in January 2015 without similar mistakes.
Charles F. Warner, Jr., convicted of raping and murdering an 11-month-old child, was originally scheduled to be executed on the same day as Clayton Lockett. After Lockett’s execution went awry, Warner’s execution was delayed. He was executed in January 2015 without similar mistakes.

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.

Benjamin R. Cole Sr., was sentenced to death for the murder of his 9-month-old daughter.
Benjamin R. Cole Sr., was sentenced to death for the murder of his 9-month-old daughter.
John M. Grant was convicted of stabbing a prison cafeteria worker to death.
John M. Grant was convicted of stabbing a prison cafeteria worker to death.
Richard E. Glossip received a death-penalty sentence for arranging the murder of his employer.
Richard E. Glossip received a death-penalty sentence for the murder of his employer.

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.

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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.

Clayton D. Lockett was sentenced to death for fatally shooting a 17-year-old Perry girl in 1999. His botched execution in April 2014 in Oklahoma opened a national debate about the state's death penalty process.
Clayton D. Lockett was sentenced to death for fatally shooting a 17-year-old Perry girl in 1999. His botched execution in April 2014 in Oklahoma opened a national debate about the state’s death penalty process.

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.”

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