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Court to rule on lethal-injection protocol

The Supreme Court agreed on Friday afternoon to hear the appeal of three Oklahoma death-row inmates who are challenging the three-drug protocol the state now uses for executions.  The Court on January 15 had refused, by a five-to-four vote, to grant delays of four inmates’ executions, and one of them was put to death that night. The other three remain in the case.

Even while agreeing to hear the case, the Justices took no action — at least not immediately — to put off any of the execution dates for the three still involved.  The next such date is next Thursday.

The Court, in a separate order, agreed to clarify when an agent of a foreign government may be sued in U.S. courts for an overseas incident involving an official agency of the foreign state.  That case is OBB Personenverkehr AG v. Sachs, involving a California woman who was injured in an accident in Austria involving the railroad owned by the Austrian government.  The woman lost both legs in the accident.

The newly granted cases are expected to be argued in the Court’s April sitting, which begins April 20.

The Oklahoma case focuses on one of the three drugs that Oklahoma uses in execution procedures — the sedative, midazolam.  The first drug in an execution by lethal injection is supposed to make the inmate unconscious so that the two other drugs can then be injected without causing excruciating pain.  The three inmates contend that midazolam is not supposed to be used as an anesthetic, and is not reliable in achieving a coma-like unconsciousness.  Lower courts, however, rejected the inmates’ challenges.

The Justices’ action in granting review of the case as it applied to the three inmates was unusual in several respects: the Court has repeatedly refused to review the specifics of lethal-drug protocols; it specifically refused to stay the executions set for all four of the inmates, thus leading to the execution of one of them; and it took on the case even though last week only four Justices had expressed concern about the specific protocol in Oklahoma — a state that badly botched an execution last April.

The four Justices who dissented from the refusal to block the executions did have the authority, under the Court’s traditions, to grant review of the case even though the Court had declined to postpone the executions.  Whether the grant of review had drawn only their votes is not known; the Court does not reveal how the Justices vote in agreeing to hear a case.  It may be that those four did vote to grant review, and did so with some hope — if not some strong indication — that at least one other Justice might be inclined to favorably consider the merits of the inmates’ challenge.

Because the Court did not rewrite the questions spelled out in the inmates’ petition, it may be assumed that it intends to review all of them.

Paraphrased from legal language, these are the three questions:

** Is a three-drug execution protocol unconstitutional under the Eighth Amendment if the first drug cannot reliably put the inmate into deep unconsciousness and he may therefore suffer real pain while dying from the other two drugs’ effects?

** Will the Supreme Court keep intact its declaration in a 2008 lethal-injection case (Baze v. Rees) restricting postponement of lethal-drug executions unless there is a clear risk of severe pain when compared to what would result by using an alternative protocol?

** Must a death-row inmate, seeking to challenge a state’s lethal-injection protocol, prove that a better alternative protocol is available, even if the existing procedure violates the Eighth Amendment?

When the Court acted last week to allow execution dates to go forward for all four of the inmates in the case, the case was titled Warner v. Gross.   That night, Oklahoma carried out the execution of Charles F. Warner, the only one scheduled for that date.  At that time, the Court did not have before it, and thus took no action on, the separate petition for review that it agreed on Friday to hear.

All four of the inmates were given death sentences for gruesome murders.  The other three inmates are Richard E. Glossip, who is currently scheduled to die next Thursday; John M. Grant, who has an execution date of February 19; and Benjamin Cole, scheduled to die March 5.

Since the Court’s order on Friday said nothing about those execution dates, the lawyers for the three inmates are expected to act quickly to ask the Justices to delay those dates.

The case does offer the Court the opportunity to rule broadly on lethal-drug executions, an issue that it dealt with comprehensively in the Baze decision nearly seven years ago.   But the forthcoming ruling might also be a narrow one, focusing only on the properties and the consequences of using the sedative midazolam.

That drug was the first one used in last week’s execution of Charles Warner, and there was no strong sign of distress observed by witnesses to that execution, although some witnesses reported that they heard him complain about feeling a strong burning sensation, but before the first drug was injected.

When the Court refused to delay any of the executions last week, Justice Sonia Sotomayor wrote a strong dissent, joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Elena Kagan.  In that opinion, Justice Sotomayor expressed the “hope that our failure to act today does not portend our unwillingness” to consider the constitutional challenge the inmates had raised.

The Court apparently discussed the next step in the case — whether to grant review — at their private Conference Friday morning.  The order granting review emerged fairly late in the afternoon.

Recommended Citation: Lyle Denniston, Court to rule on lethal-injection protocol, SCOTUSblog (Jan. 23, 2015, 4:23 PM),