On January 23 the U.S. Supreme Court agreed to hear a challenge to Oklahoma’s lethal injection procedures, particularly its use of midazolam that was used in three botched executions in 2014. Four Oklahoma inmates asked the Court to review the state’s procedures, but one of them, Charles Warner, was executed before the Court agreed to take the case. It is likely the other three defendants will be granted stays. When Warner was executed, Justice Sotomayor along with three other Justices, dissented from the denial of a stay, saying, “I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol….” The case will be argued in April and likely decided by the end of June. The questions presented by the petitioners appear below. Florida uses the same drugs as Oklahoma.

Question 1: Is it constitutionally permissible for a state to carry out an execution using a three-drug protocol where (a) there is a well-established scientific consensus that the first drug has no pain relieving properties and cannot reliably produce deep, comalike unconsciousness, and (b) it is undisputed that there is a substantial, constitutionally unacceptable risk of pain and suffering from the administration of the second and third drugs when a prisoner is conscious.

Question 2: Does the Baze-plurality stay standard apply when states are not using a protocol substantially similar to the one that this Court considered in Baze?

Question 3: Must a prisoner establish the availability of an alternative drug formula even if the state’s lethal-injection protocol, as properly administered, will violate the Eighth Amendment?

The case highlighted an oddity in court procedure that requires only four votes to decide to hear a case, but five to grant a stay of execution. Four justices voted to stay Warner’s execution, but a majority (five votes) was required to grant a stay. Eric M. Freedman, a law professor at Hofstra University, has written recently about this problem in Court procedures: “What happened to Charles Warner was not an isolated glitch. It was a typical, if high-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.” Freedman urged the Justices to change their practice, and “stop permitting executions when four Justices object.” He added, “The justices deserve time to think. A statement by four of them that they want that time should suffice to postpone a potentially fatal deadline.” At least four inmates have been put to death since August 2014 even though four Justices would have granted a stay.

(Glossip v. Gross, No. 14-7955, cert. granted Jan. 23, 2015; see A. Liptak, “Execution Case Highlights the Power of One Vote,” New York Times, January 25, 2015; E. Freedman, “Idea: No Execution If Four Justices Object,” Hofstra Law Review, forthcoming 2015). See Lethal Injections, Supreme Court, and Arbitrariness.

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