Lethal injection’s legality weighed
September, maintains the previous approach for lethal injection: a sedative to render the inmate unconscious; a second drug to paralyze him; and a third to stop his heart.
But the protocol includes a much higher dose of the sedative midazolam. When Lockett was executed, 100 milligrams of the sedative were supposed to be injected; the state now says it will use 500 mg of midazolam.
In her dissent last week in Warner’s case, Justice Sonia Sotomayor said she was concerned about Oklahoma’s use of midazolam as the first drug in the process. Although lower courts found the drug would work as intended, she said that was “difficult to accept given recent experience.”
Sotomayor noted testimony that indicated the application of the paralytic drug might render midazolam ineffective, but that it would be impossible to know whether the inmate was conscious.
Joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Sotomayor added: “Petitioners have committed horrific crimes, and should be punished. But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.”
Dale Baich, one of the attorneys representing the Oklahoma death-row prisoners, said the “lethal-injection landscape” has changed significantly since the court’s 2008 Baze v. Rees decision.
“The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly,” he said.
A district court and panel of the U.S. Court of Appeals for the 10th Circuit found otherwise. Last week’s execution of Warner, who was put to death for raping and killing an 11-month- old girl, was carried out without much incident, witnesses said, although as the process began, Warner said, “My body is on fire.”
Before his execution, Warner was one of the parties petitioning the court to review lethal injection.
Also last week, Florida, which has used midazolam in executions since 2013, executed Johnny Kormondy, who was convicted of killing a banker and raping his wife in 1993.
Midazolam was involved in three problematic executions last year, raising concerns among civil liberties groups and attorneys for death-row inmates.
In Ohio, where witnesses said the inmate choked and gasped, officials announced this month they would no longer use a combination of the drugs midazolam and hydromorphone. The state also said it would have to delay an execution scheduled for next month, and possibly others, while it tries to obtain the drugs it hopes to use in the future.
Deborah Denno, a Fordham University professor who studies the death penalty and has been critical of lethal injection, said in a telephone interview the court’s intervention was wise, since there are so many forms of the technique being used.
“Even though they’re all lethal injections, they’re all different kinds of executions,” Denno said. “We’ve never had anything like this in the history of this country, in the history of the death penalty.”
The problems facing places with lethal injection
An Oklahoma execution chamber. The botched execution of Clayton Lockett (below) in that state sparked objections.