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Supreme Ct. Stays Executions, Will Hear Lethal Injection Challenge

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By Mark Wilson, Esq. on January 28, 2015 4:37 PM

For the first time in years, the U.S. Supreme Court will decide whether the lethal injection method of execution is constitutional. The decision to hear the case comes shortly after one Oklahoma state prisoner out of four to file the case was already executed.

At least that won't happen to the other three petitioning prisoners: The High Court granted a stay of their executions until the justices make a ruling.

Does this spell the end of the death penalty? And what is "midazolam," anyway?

The Death Penalty Is Here to Stay

This probably isn't the end of the death penalty. The Court agreed to hear the case of Richard Glossip and two other inmates on death row in Oklahoma. All three are scheduled to be executed in the next few months, and on Wednesday, the Court issued an order staying their executions until the case is resolved. (A fourth inmate unsuccessfully petitioned for a stay of his execution earlier this month, before the Court agreed to take the case. He was executed January 15.)

The inmates allege that, as administered in Oklahoma right now, lethal injections violate the U.S. Constitution's ban on cruel and unusual punishment.

"So what?" you might say. "They're convicted criminals!" That's true, but they still have constitutional rights, one of which is the Eighth Amendment's prohibition on cruel and unusual punishment. Since 1976, the Supreme Court has held that, under certain circumstances, executing a convicted criminal doesn't violate the Constitution. One of these is that an execution must not create a "substantial risk of serious harm." Even though a prisoner is being killed, the procedure can't be "cruelly inhumane" or "involve torture or a lingering death."

A Gruesome Death

The justices probably decided to take this case because lethal injections are being carried out differently from the way they were in 2008, when the Court approved the use of a specific three-drug cocktail in a case called Baze v. Rees. One of the drugs used then, sodium thiopental, was supposed to render the inmate unconscious before two other drugs stopped his heart and his breathing.

Companies that manufactured sodium thiopental, both in the United States and abroad, got upset that their products were being used for lethal injections and stopped making them available to prisons for that purpose. Thirty states and the federal government suddenly had to find a different drug (or in the case of Utah, toy with the idea of bringing back the firing squad), and settled on midazolam -- with mixed results. Last year, several botched executions involving midazolam received widespread media attention; Justice Sonia Sotomayor cited one of them in her dissent from the stay of the fourth Oklahoma prisoner's execution earlier this month.

It's unlikely the death penalty, or even lethal injection, is going to be overturned. The legal questions presented to the justices focus specifically on using midazolam instead of sodium thiopental; basically, they're being asked to determine if a specific method of administering a lethal injection is constitutional. The death penalty will be with us for the foreseeable future.

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