Friday afternoon the Supreme Court agreed to hear arguments in a death penalty case focused on the use of the drug midazolam. The case was lodged by four death row inmates in Oklahoma and contends that the drug could fail to keep a condemned man sufficiently anesthetized to remain unconscious when injected with the paralytic and/or the drug intended to stop the heart.
Since the case was filed, Oklahoma has executed one of the plaintiffs – Charles Warner (the Supreme Court declined to stay his execution). Of the three remaining plaintiffs, one of them is scheduled for execution next week, and the others have execution dates between now and March 5. Petitions to stay those executions will come before the court (again) very soon.
The last time the court handled a case involving lethal injection drugs was in 2008 with Baze v. Rees. Then the court ruled that a three-drug cocktail of sodium thiopental, pancuronium bromide, and potassium chloride did not violate the Eighth Amendment prohibition against cruel and unusual punishment. This particular combination is no longer used in executions, as access to sodium thiopental dried up starting in 2011. But many states continue to combine an anesthetic, with a paralytic and a drug to stop the heart.
As part of the Baze decision the Court noted that if the sodium thiopental (the anesthetic in that particular three-drug cocktail) were not given in sufficient dose to render the inmate unconscious, there was an unacceptable risk of pain and suffering from the other drugs used. The Court ruled that the safeguards that Kentucky had in place for its execution protocol made the risk of an insufficient does of anesthetic too small to trigger Eighth Amendment concerns.
The recent problems with the use of midazolam might rise to the level of Eighth Amendment concerns. The botched executions in Arizona, Ohio and Oklahoma have raised doubts about what constitutes an effective dose of midazolam. They also raised concerns about the implementation of death penalty protocols, as other states have not had problems with midazolam (though the use of a paralytic drug may mask inmates’ suffering). The Court may rule that better safeguards would make states compliant with the Baze decision. While it is possible the Court could rule that frequent changes in execution protocols would pose an unacceptable risk of pain and suffering, the Court’s reluctance to rule on these cases makes that seem unlikely. Of course, I am neither an attorney nor a judge.
While the Court does not reveal the votes of Justices in decisions to hear cases, it is possible that only four Justices decided to hear the case of the three remaining plaintiffs. These would be the same four Justices that dissented in the decision not to stay Charles Warner’s execution. As the case would be heard in April, the other five Justices may make the decision to hear the case moot. All they would need to do is not stay the executions of the three inmates, who are all scheduled to die between now and March 5. You can make up your own minds whether that would constitute cruel and unusual treatment by the hands of the Court.