The Supreme Court is stepping into the issue of lethal injection executions for the first time since 2008 in an appeal filed by death row inmates in Oklahoma.
The justices agreed Friday to review whether the sedative midazolam can be used in executions because of concerns that it does not produce a deep, comalike unconsciousness and ensure that a prisoner does not experience intense and needless pain when other drugs are injected to kill him.
The order came eight days after the court refused to halt the execution of an Oklahoma man that employed the same combination of drugs.
Oklahoma, as well as Florida, uses midazolam as one of three drugs in lethal injection executions. The second drug serves to paralyze the inmate and the third one is used to stop the heart.
The case will be argued in late April, an attorney for the men said Friday. A decision is expected by the end of June.
The appeal was brought to the court by four Oklahoma inmates with execution dates ranging from January to March. The justices allowed Charles Warner to be put to death Jan. 15 and denied stays of execution for the other three.
At the time, Justice Sonia Sotomayor wrote a dissent that was joined by three other justices, calling on the court to examine whether the drug could be used in accordance with the constitutional prohibition on cruel and unusual punishment.
Friday’s order does not formally call a halt to those executions. Dale Baich, an attorney for the inmates, said he would ask the court to block the executions until the case is decided.
In 2008, the justices upheld the use of a different three-drug combination in a case from Kentucky and set a high bar for challenges to lethal injections. Chief Justice John Roberts wrote then that the court probably would not stop executions unless “the condemned prisoner establishes that the state’s lethal injection protocol creates a demonstrated risk of severe pain.”
What has changed since then is that states have been forced to substitute different drugs after pharmaceutical manufacturers took steps to ensure their products are not used in executions. The inmates are arguing that the state would essentially be experimenting on them by injecting them with unproven and untested drugs.
“The drug protocol in Oklahoma is not capable of producing a humane execution, even if it is administered properly,” Baich said.
Last April, when Oklahoma used midazolam for the first time, the execution turned grisly. Inmate Clayton Lockett clenched his teeth, moaned and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off. Lockett died less than an hour later.
Oklahoma revamped its procedures in response to the Lockett execution, including increasing tenfold the amount of midazolam injected. In last week’s execution, Warner showed no signs of physical distress.
Florida used the same procedure in an execution carried out the same night and has scheduled the execution of Jerry Correll for Feb. 26. But Arizona and Ohio, which had problem-filled executions involving midazolam, have said they won’t use the drug again.
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