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Supreme Court To Hear Oklahoma Execution Protocol: Here's What You Need To Know

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The U.S. Supreme Court hears oral arguments Wednesday on Oklahoma’s current lethal injection protocol during Glossip vs. Gross. The state’s method has been criticized since last year’s botched execution of Clayton Lockett, and the high court’s decision will likely affect the rest of the nation’s capital punishment procedures.

The hearing comes exactly one year after inmate Clayton Lockett writhed on the gurney for more than 40 minutes. Arguments will revolve around the drug midazolam that was used as a sedative during the execution.

Ryan Kiesel from theAmerican Civil Liberties Union of Oklahomasays critics claim the drug is unreliable and cannot routinely produce a deep, coma-like state. 

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Oklahoma Watch
Clayton Lockett was put to death April 29, 2014.

“What this case is asking the court to consider is ‘Can executions be performed in conformity with the constitution while still using these experimental and novel drugs and drug combinations?’” Kiesel said.

It’s a relatively narrow question: does the state’s current three-drug cocktail violate the constitution’s prohibition of cruel and unusual punishment?

A changing landscape

Dale Baich is an attorney for the Oklahoma inmates challenging the protocol. He says the last time the court heard arguments about execution protocol was in 2008 during Baze vs. Rees.

“It's been seven years since the U.S. Supreme Court looked at the lethal injection protocols that were in place,” Baich said. “Since that time, the landscape has changed dramatically.”

In Baze vs. Rees, the high court upheld Kentucky’s lethal injection method as constitutional. It involved a three-drug protocol that states can no longer obtain.

Over the past several years, European pharmaceutical companies opposed to the death penalty have made it increasingly difficult to obtain lethal injection drugs used most frequently in executions. Earlier this year, Baich said the challenge in getting the chemicals has caused states like Oklahoma to turn to other, less tested alternatives.

“The changes that have been made over the years are significant and create a substantial risk of harm,” Baich said.

All eyes on Kennedy

But the petitioners’ argument may be hard to prove. The state’s investigation of Clayton Lockett’s death blamed a faulty IV, not necessarily midazolam. And University of Oklahoma Law Professor Joseph Thaisays the Oklahoma may have the upper hand. 

“The odds are that the state has the leg up and it’s their case to lose, I think that's what the bookies in Vegas are saying,” Thai said.

Thai says you can also look back at the Supreme Court’s denial of Charles Warner’s request for a stay of execution in January. Granting a stay requires five votes from the justices. But only four votes are required to hear oral arguments.

“What you can infer from that is that only four justices thought there were serious enough doubts about whether this execution method was constitutional, not five.

“If five even thought it was an open question, they would've stopped the execution,” Thai said.

That means the case will likely boil down to one vote, that of Justice Anthony Kennedy, who is historically a deciding vote in close cases.  

A case with 'national implications'

Only a handful of states use midazolam during executions. Even so, OU Law ProfessorRick Tepkersays every state will be watching the Supreme Court closely.

“It'll definitely be a national case with national implications, but the facts of the case come from our own state,” Tepker said.

If the Supreme Court upholds the use of midazolam as constitutional, death penalty states will probably be on solid legal ground to use the drug during executions.

“If they strike it down, then I think there will be an immediate movement in all of the death penalty states to other methods of execution,” he said.

For Oklahoma, that means using nitrogen hypoxia, which replaces an inmate’s oxygen supply with nitrogen. Governor Mary Fallin signed into law earlier this month a bill formalizing the execution method as the state’s primary backup.

Other states have also scrambled to ensure alternative methods are available. Last month, Utah’s governor signed a billallowing firing squads for capital punishment.

But as public support for the death penalty wanes, Tepker says the justices have found themselves overseeing an ethical situation.

“The Supreme Court, once again, is ending up as arbiter of our morals and our most basic fundamental principles, and because of the nature of our constitution, we'll see that again and again and again,” Tepker said.

The U.S. Supreme Court has never ruled an existing execution method unconstitutional. And getting rid of the death penalty is not under consideration. But as the availability of lethal injection drugs dwindles, it’s likely courts across the country will face more questions regarding capital punishment protocols.

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