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Tomorrow morning, the Supreme Court of the United States will hear oral arguments in a case where many believe the entire question of whether or not the lethal injection method of execution is cruel and unusual punishment will be decided.
 
 
Be Ready at 9:45 AM Tomorrow for Lethal Injection Method Arguments
 
SCOTUS blog will begin live blogging tomorrow’s oral arguments at 9:45 AM EST.  If you want to be notified by email when the live blogging is about to start, then they’ll send you a reminder email upon request.  
 
Glossop v. Gross Background Briefs and More
 
For details on the arguments being made and the background of the case, Glossop v. Gross, read the details provided by the SCOTUS blog.  These include briefs by the parties as well as amicus curaie filings in the case.   
 
Why Follow the Live Blogging?  
 
The Supreme Court provides audio as well as transcripts of each week’s oral arguments online on a weekly basis.  So, if you want to follow things as they are happening, the live blogging allows you to do so.  There aren’t cameras in the Supreme Court for a live feed (yet).  
 

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.

Glossip Case

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?

Last week, a report was released over in Oklahoma that confirmed that the botched execution of Clayton Derrell Lockett wasn’t the result of any drug or combination of drugs. Nope.

Apparently, the horrific execution of Mr. Lockett was the result of how the IV was inserted into his arm.

You’ll recall that it was only after 45 minutes of obvious pain where the man writhed and struggled against his restraints there on the table that he finally passed away last April.

Now we know that the executioner was not a physician or even a paramedic. In fact, under the current Oklahoma laws, no formal medical training is required for the persons who are responsible for the lethal injection method of execution in that state.

Of course, Oklahoma isn’t alone in horrific executions. Arizona took almost 2 hours to execute Joseph R. Wood III this past July.  

Read the Oklahoma Department of Public Safety Report on the Execution of Clayton D. Lockett here. 

 

Back in January, we asked if states would be returning to former methods of execution, specifically the electric chair, and now it appears that Tennessee has decided to do exactly that, at least if the Governor of the State of Tennessee gets his way on things.

Thing is — that electric chair form of execution is not swift or pain-free as discussed in our earlier post (with a link to some pretty graphic examples of Florida’s experience with the electric chair).

Of course, there are other legal options out there to lethal injection: gas chambers and firing squads and hanging.  

Just last year, a New York law professor wrote an op-ed piece for the New York Times offering his opinion that states should return to the firing squad. He got lots of support.

[ For a list of states with alternative execution methods on the books to lethal injection, go here. ]

What the Tennessee Governor is doing is more than recognizing that the electric chair can be an alternative method of execution; he is seeking to replace lethal injection with the electric chair.

Tennessee was one of the first states to have a big problem with lethal injection executions because of a supply problem, and it was back in February 2011 that Tennessee decided to go ahead with an execution using the same drug that vets use to put down pets, pentobarbital. 

So, will Tennessee executions go forward with electrocution now? Go read our prior post on what an electric chair does and see what you think about what Tennessee is doing.

 

It’s not over, this argument regarding the drugs being used in lethal injection executions in this country — but it is over for Texas Death Row inmate and convicted serial killer Tommy Lynn Sells who died last night in Huntsville, Texas, as his death penalty was carried out.

The United States Supreme Court denied Sells’ petition for writ of certiorari yesterday and Sells was executed shortly thereafter.  (Read the succinct order of denial here.)

As for the arguments involved in Sells’ last appellate argument – that the State of Texas should reveal the supplier of the drugs to be used in the execution (and which did get a stay for a period of time), here is the Opinion of the Fifth Circuit Court of Appeals vacating the stay and allowing the privacy of the drug manufacturer to remain secret:

Fifth Circuit Opinion April 2014 Removing Sells’ Stay of Execution Re Secret Supplier of Lethal Execut…

 There is a good overview of the current state of lethal injection executions published in The Tennessean (and picked up by USA Today) which goes into detail regarding the current dilemma in this country regarding lethal injection executions.

Different states are approaching their Execution Schedules differently — Texas and Florida, of course, are going forward with lethal injection executions.  Texas has a new and secret supplier of pentobarbital so its execution schedule shouldn’t be thwarted by a lack of supply.

Not so for other states.  

Tennessee has reacted by bringing down the curtain down its executions and there’s a lawsuit brought by Death Row inmates seeking to change that — one question, who is the state’s drug supplier?

It’s a big question – who is supplying the drugs to the state executioners?  

And do these companies have a legal right to wear a hooded mask of sorts, hiding their identity from the public as manufacturers of a drug that is used to kill people?  

executioner,

The Florida Supreme Court issued its ruling in the use of midazolam hydrochloride as part of lethal injection executions this week.

Read the opinion in its entirety here. From their decision:

We acknowledge that, as we explained in Lightbourne, if the inmate is not fully unconscious when the second and third drugs, vecuronium bromide and potassium chloride, are dministered, the inmate will suffer pain. See Lightbourne, 969 So. 2d at 351. However, we agree with the circuit court that Muhammad has not demonstrated that the conditions presenting this risk are “sure or very likely” to cause serious illness or needless suffering and give rise to “sufficiently imminent dangers” under the standard set forth in Baze. Thus, we reject his constitutional challenge to the use of midazolam hydrochloride in the lethal injection procedure.

Two years has passed since we posted about the shortage of sodium thiopental in Florida and Texas and elsewhere, and how this necessary component of the three-drug "cocktail" used in death penalty executions was causing all sorts of problems with criminal justice officials in different parts of the country.

See:  Pentobarbital in Florida Executions: What’s Next and Tennessee is Considering Using Pentobarbital in Its Executions, the Drug Used to Put Down Pets for more details.

Now, pentobarbital is back in the news as media reports in the New York Times, the National Journal, and lots of other national medical sources are reporting that this drug isn’t going to be available to executioners here in the United States.  

It’s a big problem that still hasn’t found a solution for those seeking to enforce capital punishment: having a ready supply of lethal drugs to execute people with lethal drug injections. 

Propofol To Be Used by Missouri

On Monday, the New York Times reported that some states are considering their options, suggesting that states may follow Missouri’s lead and substitute propofol for the missing pentobarbital in their lethal drug cocktails.  

Yes, propofol is the drug administered to Michael Jackson, causing his death.

Will States Revert to Gas Chambers, Electric Chairs, Firing Squads, or Hangings?

There are some who are suggesting that lethal injections be halted as an execution method, reverting to other forms of execution which are still legal under many state laws, just not used since injections have been the preferred method for many years.

In Florida, the movement to return to the electric chair of the firing squad has been moving around the Florida Legislature for a couple of years now.  

For a list of alternative execution methods by state, see our post on the five current options for execution:

  • lethal injection
  • electric chair
  • hanging
  • firing squad
  • gas chamber.

And before people consider these archaic methods of execution as alternatives to the lethal injection, perhaps they would be well served to read the dissenting opinion of Florida Supreme Court Justice Leander J. Shaw, Jr. in the 1999 challenge to the use of Old Sparky on constitutional grounds. 

Justice Shaw attached 3 color photographs of the bloody body of Allen Lee Davis taken by a prison official shortly after he was executed by electric chair, as support for his dissenting opinion where he found the method to be unconstitutional insofar as it was cruel and unusual.   Justice Shaw’s attachments caused a worldwide clamor against this form of execution and are still used today by those fighting against capital punishment.  

Warning: don’t hit that link and go to the dissenting opinion if you find graphic images like this disturbing.  

Right now, the Florida House of Representatives has before it a bill that would end lethal injections as a method of execution.  This bill doesn’t end the death penalty, though (that’s a different bill): this proposed legislation, if it becomes law, will return Florida to its prior methods of carrying out capital punishment.

That’s right.  Old Sparky or the Firing Squad would be back as the two ways that executions would be carried out here in the State of Florida.

Who’s responsible for this?  Florida State Rep. Brad Drake — and he’s getting lots of news coverage from this, too.  Coast to coast. 

We’ve already written on the method of killing people in electric chairs; go here if you want to know more about it. 

Back in 2009, there was a three part series of posts here on the Death Penalty Blog, discussing the lethal injection cocktail as it was commonly used at the time:  in Florida, this meant a combo of first, thiopental sodium ; second, pancuronium bromide; and lastly, potassium chloride. 

From that series (please go to the posts for research details and more info):

  1. Thiopental sodium is the first drug to be administered during an execution by lethal injection in Florida. As a general anesthetic, thiopental sodium poses special risks because it is so short-lasting that for any number of reasons it can cease to operate as sufficient anesthesia long before the other drugs cause the death of the condemned.[1] Think about that. It stops working within minutes.
  2. The second chemical involved in the lethal injection process, pancuronium bromide, or Pavulon, is also constitutionally problematic under existing law. A derivative of curare, it operates to suppress any muscular movement, including breathing, in the condemned, but does not anesthetize him or affect his consciousness in any way.  According to recent scholarship, it is completely unnecessary to causing the condemned’s death, and serves only to make the execution seem more palatable to the other participants and witnesses when the other drugs have their effects, which can include spasm, twitching and other movements of the voluntary muscles.
  3. Finally, the use of the third drug — the actual killing agent potassium chloride — also raises important constitutional concerns. According to Dr. James J. Ramsey, a certified perfusionist and currently the Program Director in the Program in Cardiovascular Perfusion at Vanderbilt Medical Center, Nashville, Tennessee, the adequacy of the potassium chloride to cause death by stopping the heart is in question.  The inmate actually suffocates: the lethal injection does not just peacefully stop the heart.

Today, with the dwindling supply of drugs available for executions, there seems to be more public awareness of the chemicals used in capital punishment.  This is a good thing, since so many avert their eyes to the realities here.

This Week, The New York Times considers the question.

In a New York Times article published April 9, 2011, entitled "What’s in a Lethal Injection ‘Cocktail’?" reporter Pam Belluck delves into the issue of what exactly happens in those lethal injection executions, especially now that thiopental sodium isn’t being used any longer. 

If only it went into more detail.  The research shows that the lethal injection method is cruel – and with the innovation of a drug, pentobarbital, that has been used or tested so rarely on human beings, it’s also becoming highly unusual, too. 

Integrity, Dignity, and Honor

It would nice to think that these injections of drugs into a human being resulted in a merciful death, but research does not support that warm fuzzy.  And this was true before states like Ohio and Texas began executing men just as vets euthanize cats and dogs. 

Sure, there are proponents of the death penalty who will say "who cares? Let them suffer, look what they did."  However, there are the considerations of integrity, dignity, and honor which the state must (or should) maintain. 

Our system of government, to the extent that it deems capital punishment to be acceptable, should never stoop to have its actions compared with those that it has found worthy of death.  We must insure that the method of execution is merciful, as much as we can. 

Right now, with the condoned use of pentobarbital in state executions, it’s clear that we are not.