The execution chamber at the Oklahoma State Penitentiary in McAlester.

Oklahoma’s attorney general will now begin the process to set execution dates for three inmates after the U.S. Supreme Court today rejected the inmates’ challenge of the state’s use of a controversial drug in executions.

The court ruled Monday that Oklahoma inmates failed to prove that the state’s use of midazolam, a sedative, as one of three drugs in carrying out the death penalty violated the Eighth Amendment’s prohibition against cruel and unusual punishment.

The case arose in the wake of Oklahoma’s botched execution of Clayton Lockett in 2014, in which the convicted murderer writhed and moaned on the execution table and took 43 minutes to die.

The high court’s 5-4 decision in Glossip v. Gross, as the case is known, means Oklahoma can continue to use midazolam in three-drug cocktail in executions.

Justice Samuel Alito, writing for the court’s majority, said the inmates failed to identify any viable alternatives to midazolam, and that the lower courts did not commit an error when they ruled that midazolam was highly likely to provide for a painless execution.

“On the con­trary, the record shows that Oklahoma has been unable to procure those drugs despite a good-faith effort to do so,” Alito wrote. “Petitioners do not seriously contest this factual finding, and they have not identified any available drug or drugs that could be used in place of those that Oklahoma is now unable to obtain. Nor have they shown a risk of pain so great that other acceptable, available methods must be used.”

Oklahoma Attorney General Scott Pruitt lauded the ruling.

“The state of Oklahoma is vested with the authority to carry out the sentence of death handed out by juries for the most heinous of crimes,” Pruitt said. “State officials act deliberately and thoughtfully in carrying out this responsibility. This marks the eighth time a court has reviewed and upheld as constitutional the lethal injection protocol used by Oklahoma. The court’s ruling preserves the ability of the Department of Corrections to proceed with carrying out the punishment of death.”

Pruitt said his office will notify the Oklahoma Court of Criminal Appeals that   execution dates can now be set plaintiffs in the case – Richard Glossip, John Marion Grant and Benjamin Robert Cole.

“The families in these three cases have waited a combined 48 years for justice,” Pruitt said. “Now that the legal issues have been settled, the state can proceed with ensuring that justice is served for the victims of these horrible and tragic crimes.”

Corrections Director Robert Patton thanked Pruitt for handling the case.

“We appreciate the work of the attorney general and the consideration of the court. We will be working with the attorney general, the governor and the Court of Criminal Appeals to go forward with the executions that were previously stayed,” Patton said.

Governor Mary Fallin also thanked Pruitt.

“The Constitution is clearly not intended to prohibit the death penalty by lethal injection or the use of the sedative midazolam. I appreciate the Court’s ruling, which upholds the letter and the spirit of the law as it is written,” Fallin said. “My thanks go out to Attorney General Scott Pruitt, Solicitor General Patrick Wyrick and their legal team for aggressively and successfully representing the state on this issue.”

Dale Baich, assistant federal public defender out of Arizona who helped represent the prisoners, said the ruling was “human experimentation.”

“Today’s ruling contradicts the science and medical understanding of the properties of midazolam,” Baich said. “Because the court declined to require that states follow scientific guidelines in determining their lethal injection procedures, state’s will be allowed to conduct additional human experimentation when they carry out executions by lethal injection.”

In Oklahoma’s execution protocol, midazolam is administered first to render the inmate unconscious, followed by a paralytic and then a drug that stops the heart.

Meanwhile, a manufacturer of midazolam issued a letter in March condemning all states using the drug, including Oklahoma. It remains unclear how this will affect the availability of midazolam.

The state began to use the drug, which is often used to treat seizures and insomnia as well as for medical sedation, after supplies of other sedatives the state had used for executions became scarce.

The state inmates in the case argued that the efficacy of midazolam in executions had not been proven, and that other drugs that have been proven effective could be used.

Following the Clayton Lockett execution, the state revised its execution protocol to increase the dose of midazolam administered by fivefold and executed an inmate without incident this year using the drug.

Department of Corrections spokeswoman Terri Watkins would not say whether the state had returned its supply of midazolam to the manufacturer or how much of the drug the state currently has. She did say, however, that the state will be able to go forward with the executions of the three plaintiffs.

“We’re not going to discuss (execution) drugs,” Watkins said. “The only statement we will make is that we have access to the drugs necessary to complete the three executions.”

Also this year, the state approved a new form of execution by nitrogen gas should lethal injection be ruled unconstitutional. State law also allows execution by firing squad.

Justice Stephen Breyer, writing the principal dissent, questioned the constitutionality of the death penalty in general.

In her dissent, Justice Sonya Sotomayor wrote that the availability of other drugs does not answer the principal question of whether the punishment could be considered cruel or unusual.

“For these reasons, the Court’s available-alternative requirement leads to patently absurd consequences,” Sotomayor wrote. “Petitioners contend that Oklahoma’s current protocol is a barbarous method of punishment – the chemical equivalent of being burned alive. But under the Court’s new rule, it would not matter whether the State intended to use midazolam, or instead to have petitioners drawn and quartered, slowly tortured to death, or actually burned at the stake. Because petitioners failed to prove the availability of sodium thiopental or pentobarbital, the State could execute them using whatever means it designated.”

Baich said he plans to continue his work against the death penalty. One issue, Baich said, is states argue that until an execution date has been set, no legal action challenging lethal injection drugs can be brought forward.

“It’s almost impossible to win these cases when prisoners are asking for stays of executions,” Baich said. “I think what needs to happen is these lawsuits need to be brought sooner so they can be litigated like any other civil case.”

Support our publication

Every day we strive to produce journalism that matters — stories that strengthen accountability and transparency, provide value and resonate with readers like you.

This work is essential to a better-informed community and a healthy democracy. But it isn’t possible without your support.