WASHINGTON — The U.S. Supreme Court on Friday agreed to review Oklahoma’s method of execution by lethal injection, taking up a case brought by three death row inmates who accuse the state of violating the U.S. Constitution’s ban on cruel and unusual punishment.
The high court just last week allowed the execution of a convicted killer to go ahead in Oklahoma over the objection of its four liberal members.
The three-drug process used by Oklahoma prison officials for carrying out the death penalty has been widely debated since the April 2014 botched execution of inmate Clayton Lockett, a convicted murder. He could be seen twisting on the gurney after death chamber staff failed to place the IV properly.
The inmates challenging the state’s procedures argue that the sedative used by Oklahoma, midazolam, cannot achieve the level of unconsciousness required for surgery, and therefore, unsuitable for executions.
The case draws fresh attention to the ongoing debate over whether the death penalty should continue to be used in the United States at a time when most developed countries have abandoned it.
The Death Penalty Information Center, which compiles execution statistics, says only seven of the 32 states that still have the death penalty on the books executed inmates in 2014, with most coming in just three states: Texas, Missouri and Florida. The group also said the number of executed inmates has fallen to a 20-year low.
The Supreme Court case directly affects only Oklahoma. But Florida uses a similar protocol so death row inmates there may seek stays based on the pending case.
On Jan. 15, the high court declined to halt the execution of another Oklahoma inmate, Charles Warner, who was convicted of raping and murdering an 11-month-old baby. The court was divided 5-4, with Justice Sonia Sotomayor writing a dissenting opinion.
Although five votes are needed to grant a stay application, only four are required for the court to take up a case.
The inmates say the three-drug protocol used by the state can cause extreme pain in violation of the U.S. Constitution’s ban on cruel and unusual punishment.
After the Lockett execution, the state revised its protocols by increasing the amount of midazolam used to render an inmate unconscious. Lower courts signed off on the change, as did the divided Supreme Court.
Justice Sonia Sotomayor, one of the liberals who dissented in the Warner case, wrote an opinion at the time saying she was “deeply troubled by this evidence suggesting that midazolam cannot be constitutionally used as the first drug in a three-drug lethal injection protocol.”
But the fact that none of the court’s five conservatives, including regular swing vote Anthony Kennedy, voted to grant the stay application suggests the inmates face an uphill battle to win their case.
The inmates want the court to decide whether its 2008 decision in a case called Baze v. Rees in which the justices upheld the three-drug execution protocol used by Kentucky applies to Oklahoma’s procedures. Lawyers for the inmates said that the Oklahoma protocol is different, so the reasoning of the 2008 ruling should not apply.
“The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly,” Dale Baich, an attorney for the inmates, said.
Oklahoma Attorney General Scott Pruitt said, “We will continue to defend the constitutionality of this protocol in order to preserve [the Department of Corrections’] ability to proceed with the sentences that were given to each inmate by a jury of their peers.”
The inmates are Richard Glossip, John Grant and Benjamin Cole. Glossip, who arranged for his employer to be beaten to death, is scheduled to be executed on Jan. 29. Grant, who stabbed a corrections worker to death, is due to be put to death on Feb. 19. Cole, convicted of killing his 9-month-old daughter, is scheduled to be executed on March 5.
The brief court order did not note whether the court had agreed to stay the executions.
The case will be argued in April, with a decision due by the end of June.