Why would the Supreme Court refuse to stop an execution in Oklahoma and – days later – decide to consider whether the injection that killed the inmate might subject a person to cruel and unusual punishment?
Four inmates in Oklahoma originally petitioned the court to review the use of the state’s drug protocol, which includes the sedative midazolam, following a bungled lethal injection in April. That execution killed Clayton Lockett eventually, but only after he writhed on a gurney and appeared to grimace in pain.
Charles Warner, convicted in the rape and murder of an 11-year-old, was the first inmate put to death under a revised protocol since that botched execution. Warner died by lethal injection Jan. 15.
The Supreme Court’s four liberal justices wanted a stay, the Washington Post reports, but Warner lost out to mathematics, with five justices supporting the execution.
However, only four justices are needed to decide whether the court takes a case. On Friday, the court agreed to review the execution protocol to see if the injections many states use to kill inmates violate the constitution.
But there could be a math problem.
Lawyers for the petitioning inmates are fighting for future stay orders, but another execution is scheduled in Oklahoma for Thursday, the Post reports.
That could mean that another inmate is executed before the court reviews whether the manner of his death might cause suffering that amounts to unusual punishment.
The Lockett execution is one of two other controversial executions last year.
As the Post reports:
Ohio had used the drug months earlier, and the inmate in that execution gasped and choked before taking about 25 minutes to die. An Arizona inmate took nearly two hours to die last summer, gasping and snorting before he died. Florida, the first state to use the drug for an execution, has utilized it repeatedly and without witnesses seeing these kinds of issues occur. (A media witness did say that when the state first used the drug, the inmate being executed seemed to remain awake longer and continue to move for longer than other people had during their executions.)
Botched executions have in part been blamed on the scarcity of drugs commonly used in them.
In Pennsylvania, Hubert Michael Jr. was scheduled to be the first inmate executed since 1999. But the September date came and went because the state couldn’t find the drugs to kill him, according to then-Gov. Tom Corbett.
Several more Pennsylvania inmates were given execution dates, but they have not been killed.
As PennLive notes, it’s far more likely for death row inmates to die of natural causes than to be killed by the state.
The Supreme Court in 2008 upheld the execution protocol used in Kentucky.
Justice Sonia Sotomayor in her dissent of the court’s decision to allow Warner’s execution said the constitution guarantees that no one should face an execution that causes “searing, unnecessary pain before death.”
She specifically questioned a lower court’s opinion on midazolam.
According to the Post:
She went on to question a lower court’s thought that midazolam would “work as intended difficult to accept given recent experience with the use of this drug.” Since a paralytic is also injected as part of the lethal injection, that “may mask the ineffectiveness of midazolam as an anesthetic” because an inmate could be conscious but unable to move, she wrote.
Some states have considered sidestepping the issue entirely and returning to death by firing squad.