So There Will Be A Lethal Injection Case After All

On Wednesday the Supreme Court agreed to delay the executions of three Oklahoma inmates (H/T SCOTUSBlog) who have a case before the Court concerning the method of those executions.  The order specified executions by midazolam, which is the drug at issue in Oklahoma.  While the case is scheduled for consideration by the Court in April, the three remaining condemned men were scheduled to die well before then.  Had the Court not acted when it did, there would now be two petitioners.

It is possible that Oklahoma could work around the order by setting up a new lethal execution protocol that does not use midazolam and have that protocol approved by the Court.  There has been even greater secrecy around lethal injection exections since drugs have become more scarce, and Oklahoma could be keeping things quiet if they were working on a new protocol.  Per SCOTUSBlog the state was seeking an order that explicitly permitted the delay to be conditional on using a different protocol.

It is worth noting that on Thursday the Supreme Court denied a request of a stay of execution from Texas.  Midazolam is not used in Texas, which currently opts for a massive does of pentobarbital to conduct its executions.  Should the Supreme Court decide against Oklahoma’s current execution drug protocol, I could easily see it simply eliminating midazolam or adjusting the dosage rather than barring the practice of lethal injection.

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