The Supreme Court has agreed to consider the case of Glossip v. Gross (coming out of Oklahoma) which is a death penalty case that may have national impact on how capital punishment is handled by Florida, Texas, and the rest of the country.
Image: State of Florida Execution Chamber No. 3
In Glossip, the issues presented to the High Court do not involve all lethal injections, or whether this execution method itself is “cruel and unusual punishment” in violation of the Eight Amendment.
It’s not that broad.
What the U.S. Supreme Court will be deciding is if a lethal injection execution method using midazolam as one of the three drugs involved in a lethal injection execution is “cruel and unusual.”
Still, the fact that the High Court is hearing this issue seems to have a powerful effect: recently, the Governor of Ohio announced that all of Ohio’s executions set for this year (2015) would be stayed given the pending matters before SCOTUS.
There are three Oklahoma Death Row inmates going before SCOTUS, arguing against the use of midazolam as part of the three-drug lethal injection cocktail used by the State of Oklahoma.
1. You can follow the case on the SCOTUS Docket.
2. For a good review of the Glossip case – both its history and the issues being presented to the Justices (oral argument probably in April 2015), check out James Ching’s take on things.
3. Here are the Questions Presented to the U.S. Supreme Court in Glossip (writ granted January 23, 2015)(emphasis added):
In Baze v. Rees, 553 U.S. 35 (2008), the Court held that Kentucky’s three-drug execution protocol was constitutional based on the uncontested fact that "proper administration of the first drug"-which was a "fast-acting barbiturate" that created "a deep, comalike unconsciousness"-will ensure that the prisoner will not experience the known pain of suffering from the administration of the second and third drugs, pancuronium bromide and potassium chloride. Id. at 44.
The Baze plurality established a stay standard to prevent unwarranted last-minute litigation challenging lethal-injection protocols that were substantially similar to the one reviewed in Baze; a stay would not be granted absent a showing of a "demonstrated risk of severe pain" that was "substantial when compared to the known and available alternatives." Id. at 6l.
In this case, Oklahoma intends to execute Petitioners using a three-drug protocol with the same second and third drugs addressed in Baze.
However, the first drug to be administered (midazolam) is not a fast-acting barbiturate; it is a benzodiazepine that has no pain-relieving properties, and there is a well-established scientific consensus that it cannot maintain a deep, comalike unconsciousness.
For these reasons, it is uncontested that midazolam is not approved by the FDA for use as general anesthesia and is never used as the sole anesthetic for painful surgical procedures.
Although Oklahoma admits that administration of the second or third drug to a conscious prisoner would cause intense and needless pain and suffering, it has selected midazolam because of availability rather than to create a more humane execution.
Oklahoma’s intention to use midazolam to execute the Petitioners raises the following questions, left unanswered by this Court in Baze:
Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.
Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?
Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment?