(UPDATED 9:14 p.m. Oklahoma completed the execution of Charles Frederick Warner less than an hour after the Supreme Court had acted.)
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Nearly nine months after a widely criticized execution that went seriously awry in Oklahoma, that state on Thursday evening gained permission — from a deeply divided Supreme Court — to resume the use of lethal drugs in executions. The failed plea for delay is here.
The Supreme Court majority, presumably made up of five Justices, made no comment in refusing to postpone the planned execution of convicted murderer Charles Frederick Warner, sentenced to die for the murder and rape of an eleven-month-old baby. Warner had been scheduled to die two hours after the botched execution in April of Clayton D. Lockett.
Justice Sonia Sotomayor, writing for four dissenters, strongly protested the reliability of the first drug to be used in the three-drug Oklahoma protocol, saying there was significant scientific doubt about whether it would succeed in causing unconsciousness in an inmate, and thus potentially exposing him to “searing, unnecessary pain before death.” She was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg, and Elena Kagan.
Oklahoma had stopped all executions after Lockett’s apparently prolonged suffering during a lethal-drug procedure last April, but the state in recent days had won court cases filed by four inmates, testing the plan to use a new combination of drugs. The first drug in the protocol — midazalom — was also the initial drug used in Lockett’s case and apparently had not put him sufficiently to sleep.
For the resumed executions, Oklahoma significantly increased the planned dosage of midazalom. Justice Sotomayor contended, however, that there is a “ceiling” point at which even high doses of that drug will not cause sufficient unconsciousness to mask the predictable pain resulting from the following two drugs — one to paralyze the body, the other to stop the inmate’s heart and cause death.
Lawyers for Warner and three other death-row inmates asked the Supreme Court to postpone their executions until the Justices could review lower-court decisions permitting the new protocol. In the order issued less than an hour before Warner was to be put to death, the Court acted only on the delay request. There was no separate action on the petition.
The petition sought to raise three questions: the constitutionality of using the new procedure, including midazalom as the first drug; the application to current sentencing cases of the Court’s 2008 ruling in Baze v. Rees allowing use of lethal-drug executions, and the proof that a death-row inmate must offer to show that a lethal-injection protocol would violate the Eighth Amendment’s ban on cruel and unusual punishment.
Along with Warner, that petition was filed for inmates Richard E Glossip, John M. Grant, and Benjamin R. Cole. State officials opposed both review of the petition and the request for postponement of the execution of Warner and, later, the other three.
