U.S. Supreme Court

Supreme Court agrees to decide whether sedative can be used in executions

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The U.S. Supreme Court has agreed to hear a case challenging the use of the sedative midazolam in executions by lethal injection, the Associated Press reported Friday.

Capital defendants from Oklahoma had asked the court to determine whether the use of midazolam in lethal injections is unconstitutional. In their petition for certiorari (PDF), the inmates argue that using midazolam as the sedative component of a lethal injection cocktail violates the Eighth Amendment because “it is a benzodiazepine that has no pain-relieving properties.”

The prior sedative of choice, pentobarbital, became harder for states to find after one of its manufacturers started refusing to sell it to states. Some states turned to compounding pharmacies to make pentobarbital; others chose midazolam. The inmates argue that Oklahoma chose midazolam “hastily” and partly on the basis of research conducted by a Department of Corrections attorney who cited “Wiki leaks or whatever it is.”

Executions using midazolam have attracted negative publicity. At Oklahoma’s first such execution, Clayton Lockett writhed, spoke and bucked for 43 minutes before dying, USA Today reported. Lawyers for the state of Oklahoma say this was caused by failure to get the IV into Lockett’s veins properly. Similar problems attended the executions of Dennis McGuire in Ohio and Joseph Wood in Arizona. However, Florida executions using midazolam have taken place without incident, and lawyers for the state of Oklahoma say it’s been used at least 10 times.

This case will be the first death penalty case taken up by the high court since 2008’s Baze v. Rees. In that case, the court approved the use of the three drugs used at the time in lethal injections. However, the sedative at issue there was sodium thiopental, which has since become difficult to find because of anti-capital-punishment activism and a British ban on export to the U.S. The inmates argue that midazolam cannot meet the requirements laid down in Baze.

One of the inmates involved in the current case, Charles Warner, has been put to death after the court voted 5-4 not to delay any of their executions. The others—Richard Glossip, John Grant and Benjamin Cole—are the next three inmates scheduled to die in Oklahoma. Glossip’s execution is slated for Thursday.

The case is Glossip v. Gross.

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