Justices to Hear Case Over Drugs Used in Executions

24 Jan 2015 | Author: | No comments yet »

Justices to Hear Case Over Drugs Used in Executions.

WASHINGTON — The Supreme Court on Friday agreed to decide a case on the constitutionality of the new combinations of drugs that some states are using to execute prisoners and that critics say cause intense suffering. The Supreme Court’s announcement Friday that it would consider lethal injection, potentially reshaping the way executions are carried out in the United States, comes just a week after the justices declined to stop an execution in Oklahoma. The justices agreed Friday to review whether the sedative midazolam can be used in executions because of concerns that it does not produce a deep, comalike unconsciousness and ensure that a prisoner does not experience intense and needless pain when other drugs are injected to kill him.

Those problematic executions include Clayton Lockett, an Oklahoma inmate in April who died of a heart attack 43 minutes after the lethal injection process was started. But it also comes after several erratic years of executions around the country, as states have changed their protocols again and again, scrambled to obtain the necessary drugs and faced criticism for effectively experimenting with capital punishment. With the addition of this case, the court’s term seems likely to end with three major decisions — on same-sex marriage, on the fate of the Affordable Care Act and, now, on the administration of capital punishment. It takes only four of the nine justices to agree to hear a legal claim, but a majority of five is needed to issue a ruling, including stopping an execution. Because the court’s four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court.

In Warner’s case, Justice Sonia Sotomayor worried that it had not been proven that the state’s new procedure was valid, following a botched effort in the execution last year of Clayton Lockett. “Petitioners have committed horrific crimes, and should be punished,” Sotomayor wrote. “But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death. As a result, it appears the liberal justices voted to the hear the case, even though conservatives stood firm in their position that the drug is legal. I hope that our failure to act today does not portend our unwillingness to consider these questions.” She was joined by Justices Ruth Bader Ginsburg, Stephen G.

The justices said they would take up a case presented by three inmates currently scheduled to be executed by Oklahoma over the next six weeks, with the first of these executions planned for next Thursday. The petition had originally been put forward by four inmates, rather than three, but Charles Warner, the fourth inmate, was put to death in Oklahoma last week. Freedman, a law professor at Hofstra University. “The court’s decision to address the confusion at last is welcome.” The case the court agreed on Friday to hear, Glossip v.

The most common anesthetic used was sodium thiopental, but in 2011, its sole manufacturer said it would no longer make it after Italian officials banned export of the drug for capital punishment. This new policy still utilizes midazolam, which was also used in Lockett’s bungled execution, but it calls for five times the dose that was supposed to be injected into Lockett. Gross and decide the same issue posed by Warner’s case. “The time is right for the court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drug protocols,” Baich said. In 2008, the justices upheld the use of a different three-drug combination in a case from Kentucky and set a high bar for challenges to lethal injections. The execution procedure involves three drugs: Midazolam, which is intended to render the prisoner unconscious, before the injection of a paralytic followed by the injection of a heart-stopping agent.

Some states have switched to midazolam because companies making the traditionally used barbiturates, which have a longer track record and deeper anesthetic properties, have refused to provide them for executions. The inmates are trying to stop their executions, arguing that the state would essentially be experimenting on them by injecting them with unproven and untested drugs.

The execution lasted 18 minutes, during which Warner, 47, convicted in the murder and rape of an 11-month-old girl in 1997, said the injection “feels like acid” and “my body is on fire.” Witnesses said they saw only slight twitching in Warner’s neck for about seven minutes before he stopped breathing. Until 2010, most lethal injections were carried out using a three-drug combination: an anesthetic, a paralytic drug and a drug that stopped the heart. Since then, however, Oklahoma, Ohio and Arizona have carried out apparently botched executions in which the inmates seemed to writhe in pain or took hours to die.

The prisoners’ lawyers also blame the drug protocol for two other gruesome deaths — the execution a year ago of Ohio’s Dennis McGuire, who made snorting noises for 20 minutes before dying, and July’s execution of Arizona’s Joseph Wood, who appeared to gasp hundreds of times during a death that took nearly two hours. Another Oklahoma prisoner and plaintiff in the case, Richard Glossip, who was convicted of a 1997 contract murder, is scheduled for execution on Thursday. “Our immediate concern now is to try to get a stay for Mr. Inmate Clayton Lockett clenched his teeth, moaned, and writhed on the gurney before a doctor noticed a problem with the intravenous line and the execution was called off.

Some states, like Oklahoma, have relied on unproven drug cocktails, all while saying they must conceal the source of the drugs involved to protect suppliers from legal action and harassment. “It looks like a street-level drug deal,” said Dean Sanderford, a lawyer for Lockett. “And they’re keeping all the information secret from us. . . . They don’t need to be carrying out any more executions until they come clean, until we know exactly what happened with Clayton’s execution and everything about these drugs, where they’re getting them.” After a review of Lockett’s death, Oklahoma a few months ago announced changes to its lethal injection procedure. On the day Warner was executed, it used the same three-drug combination to execute Johnny Shane Kormondy, 42, who killed a man during a 1993 home invasion.

Oklahoma is apparently looking at becoming the first state to use “forced deprivation of oxygen,” while Tennessee may bring back the electric chair and Utah may reinstate the firing squad, according to the Globe. Medical experts testifying on behalf of the inmates at an evidentiary hearing said the effects of high doses of midazolam, which Oklahoma adopted, were too unpredictable to justify its use. The preferred first drug had been sodium thiopental, a fast-action barbiturate no longer in supply as drugmakers and pharmacies — particularly in Europe, where the death penalty is widely opposed — have cut off production. The justices ruled in 2008 that using three drugs in succession to kill an inmate does not violate the Constitution’s ban on cruel and unusual punishment. But at the time, the drug supply was more reliable. • In May, the justices blocked the execution of a Missouri murderer because his specific medical condition made it likely that he would suffer from a controversial lethal injection. • Later that month, they ruled 5-4 that Florida must apply a margin of error to IQ tests, making it harder for states to execute those with borderline intellectual disabilities. • In October, the court stopped the execution of yet another Missouri man over concerns that his lawyers were ineffective and had missed a deadline for an appeal.

Yet the protocols have shifted broadly since then, moving states away from the three-drug combination used by Kentucky. “It’s been protocol changes on crack ever since then, to an unprecedented degree,” Denno said. “We’ve had many kinds of execution method and protocols. After years of pivots and changes, uncertainty and drug substitutions, the justices could provide some measure of clarity for a process that has become fractured and inconsistent.

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