April 24, 2015 Practice Points

SCOTUS Preparing to Hear First Death-Penalty Case in Seven Years

The Court will decide whether Oklahoma’s use of the sedative midazolam as the first drug in a three-drug protocol violates the Eighth Amendment.

By Yaser Ali – April 24, 2015

For the first time since 2008, the Supreme Court is preparing to hear oral argument regarding the constitutionality of a state’s lethal-injection procedures. In Glossip v. Gross, the Court will decide whether Oklahoma’s use of the sedative midazolam as the first drug in a three-drug protocol violates the Eighth Amendment to the U.S. Constitution. Oklahoma currently administers midazolam to render a prisoner unconscious, followed by vecuronium to paralyze the prisoner, and potassium chloride to stop the prisoner’s heart.

Plaintiffs Richard Glossip, John Grant, and Benjamin Cole, three death-row inmates in Oklahoma, assert that the use of midazolam in lethal injections is constitutionally impermissible because it creates “an objectively intolerable risk of harm.” They contend that the drug has no pain-relieving properties, has not been approved by the Food and Drug Administration for use as a general anesthetic, and that there is well-established proof that it cannot guarantee that a prisoner will remain in a coma-like state throughout the execution.

Oklahoma’s lethal-injection process gained national attention last year after the state botched the execution of Clayton Lockett. Lawyers who were present at the execution report that after Lockett had been injected with midazolam and declared unconscious, “he began to speak, buck, raise his head, and writhe against the gurney.” He died 43 minutes later.

The Lockett execution reignited a national debate over the death penalty and led to a call from opponents for a moratorium on capital punishment. After briefly suspending lethal injections, Oklahoma reinstated its execution program and continues to administer midazolam at a higher dosage. Three other states also have also used midazolam in executions and four others have proposed its use.

The case is scheduled for argument on April 29, 2015.

— Yaser Ali, Osborn Maledon, P.A., Phoenix, AZ

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