Huntsville Unit, the prison where Texas has executed more than 500 death-row inmates since 1982.
The U.S. Supreme Court on Wednesday
has stayed the execution of three Oklahoma inmates until it rules on whether the use of the sedative midazolam as part of the three-drug combination that would be used to kill them constitutes cruel and unusual punishment under the Eighth Amendment. The Court had agreed to take on the cruel-and-unusual case last Friday.
Too late for Charles Warner, the murderer who Oklahoma executed Jan. 15 after the Court refused to grant him a stay in a 5-4 ruling. Justice Sonia Sottomayor delivered a vigorous dissent in that decision. Warner and the three men whose executions have been stayed were each convicted of murder.
Someday, perhaps, 32 states (and the federal government) will wise up and join the 18 states plus the District of Columbia that have abolished the death penalty. Until then, we're going to continue to have executions of the innocent, even if most of these cases don't get examined in the detail that Carlos de Luna's did.
Most people who are executed, however, are not innocent. And the majority of Americans continue to support capital punishment although the percentage falls to 50 percent if the alternative of life imprisonment is included in polling on the matter. It could thus be a very long time until that "someday" of nationwide abolition comes to pass. Meanwhile, the preferred execution method is likely to remain lethal injection, first used by Texas 33 years ago.
Although most of the death penalty states, the federal government and the military now use or propose to use a single drug to kill those they have put on death row, there are currently four different lethal injection protocols in use. All who use a three-drug combination have had a problem because the European Union forbids export of drugs used for lethal injection and U.S. companies refuse to produce the first drug used in the killing combination. So, alternatives have been sought.
As a consequence, Florida and Oklahoma have used midazolam as the first drug in the three-drug protocol. One of the Oklahoma executions was incompetently done last April, with the inmate, Clayton Lockett, writhing, gasping and speaking briefly 14 minutes into the procedure after having been judged unconscious. He didn't die for 43 minutes, well after the injection procedure had been ordered ended. The White House issued a statement saying the execution "fell short of humane standards."
Read more below the fold for what Supreme Court will consider in the drug case.
Ohio and Arizona used midazolam once each in 2014 as part of a two-drug protocol. In both cases, inmates gasped and took a long time to die. Louisiana and Kentucky are pondering the use of midazolam in a two-drug protocol, and Alabama and Virginia have proposed using it in a three-drug protocol.
To avoid citizen pressure on the companies supplying execution drugs, many states have laws on the books keeping the source of their execution drugs secret. Oklahoma's is one of the most restrictive. Its statute does mandate secrecy for the “identity of all persons who participate in or administer the execution process and persons who supply the drugs, medical supplies or medical equipment for the execution.” It exempts purchases of the drugs from other provisions in state law that guarantee public access to information.
Lyle Denniston at SCOTUSblog evaluates what the Court will be reviewing:
Paraphrased from legal language, these are the three questions:
• Is a three-drug execution protocol unconstitutional under the Eighth Amendment if the first drug cannot reliably put the inmate into deep unconsciousness and he may therefore suffer real pain while dying from the other two drugs’ effects?
• Will the Supreme Court keep intact its declaration in a 2008 lethal-injection case (Baze v. Rees) restricting postponement of lethal-drug executions unless there is a clear risk of severe pain when compared to what would result by using an alternative protocol?
• Must a death-row inmate, seeking to challenge a state’s lethal-injection protocol, prove that a better alternative protocol is available, even if the existing procedure violates the Eighth Amendment?
Not considered, of course, will be the best alternative: ending the death penalty altogether.