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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