This post appeared originally on scotusblog.com
Without a noted dissent, the Supreme Court on Wednesday afternoon delayed the scheduled execution of three Oklahoma death-row inmates, whose case the Justices will hear in late April. The executions were put on hold, but only so far as the state would use a specific drug in the procedure — the sedative midazolam.
Although the order blocked the execution until a final ruling is issued in that case, the fact that the order was specific in forbidding the state temporarily from using only one specific drug left Oklahoma with the option of trying to develop a new lethal-drug protocol that could free it to resume executions.
The limited nature of the Court’s order reflected the division among the Justices about lethal-drug executions. Last week, by a five-to-four vote, the Court refused to postpone the execution of one Oklahoma inmate, but, a few days later, granted review of the three remaining inmates’ challenge to the same protocol Oklahoma had used in the one inmate’s execution.
State officials then asked the Court for a postponement, either until the case was heard and decided, or until the state could find an alternative method of carrying out executions with lethal drugs — that is, a protocol that would not use midazolam as the first drug in the combination, to bring about unconsciousness so that two other drugs could then be injected to produce paralysis and then death.
The order that the Justices issued did not have the exact wording that state officials had requested, but appeared likely to have the same effect. Since it only barred execution of these three inmates, and only if midazolam were to be used, the order left the state with at least the option of working out another method, and then returning to the Court for permission to use that alternative.
Oklahoma had been scheduled to execute the first of these three inmates on Thursday. The second was due to be put to death in February, and the third in March. The order issued Wednesday applied to all three inmates — but only in its limited scope.
Oklahoma and other states have been struggling for the past two years to find new ways to carry out the death penalty, since a three-drug protocol that the Supreme Court had approved in a ruling in 2008 was no longer available, as drug companies refused to produce the first drug for use in executions.
Without access to the combination that the Supreme Court had approved, Oklahoma and Florida turned to a combination that began with midazolam. There is a dispute, in this case, among scientific and medical witnesses about whether that sedative — which the federal government has not approved for use as an anesthetic — was capable of producing a deep enough sleep in order for the inmate to experience less pain when the other two drugs were administered.