WASHINGTON – Exactly one year after a botched execution in Oklahoma, the state’s new lethal injection protocol came under intense questioning Wednesday by a divided U.S. Supreme Court, with the pivotal justice, Anthony Kennedy, doing little to tip his hand.
Some of the strongest verbal fireworks came from justices Elena Kagan and Sonia Sotomayor, who wrote the court’s dissent in an earlier failed bid to stay the execution of Oklahoma inmate Charles Warner.
At the heart of the case is whether midazolam, which is a sedative, can induce the same “coma-like state” in people that pentobarbital and other anesthetics have done during executions for decades. Inmates in the case argue that midazolam can leave inmates conscious during executions, exposing them to pain.
Kagan suggested that there was little evidence that midazolam, which Oklahoma began using as the first of three lethal drugs last year, will render inmates unconscious.
“Suppose that we said we are going to burn you at the stake, but before we do, we are going to give you an anesthetic before we burn you alive,” Kagan asked Solicitor General Patrick Wyrick, who was arguing for the state. “Maybe you will feel it; maybe you won’t.”
“That’s not the world we live in,” Wyrick responded, noting that inmates who filed the lawsuit have the burden to show that Oklahoma’s lethal injection protocol is unconstitutional.
Each side had one hour to present oral arguments to the justices, who frequently interrupted the attorneys and sometimes each other with questions. The courtroom was packed with reporters, some who had to peer around thick velvet drapes for a partial view of the justices.