On January 15, 2015, the Supreme Court refused to stay the executions of four petitioners on death row in Oklahoma. That night, the state executed one of the four petitioners, Charles Warner, by lethal injection.

On January 23, 2015, the Court agreed to hear the remaining three petitioners’ case, Glossip v. Gross, and later stayed the remaining three executions.

Glossip v. Gross asks the question: does Oklahoma’s protocol for lethal injections qualify as cruel and unusual punishment? The state proposes to use the same three-drug protocol it used in the execution of Clayton Lockett in April 2014. After the Oklahoma Department of Corrections administered the drugs and declared Lockett unconscious, Lockett woke up, writhing in pain. He cried out, “Something is wrong,” and “The drugs aren’t working.”[1] Lockett died of a heart attack on the execution table, 40 minutes after the drugs were administered.

Lockett suffered needlessly because the experimental drug midazolam failed to render him unconscious.[2] Oklahoma proposes to use the same three-drug protocol on the three petitioners in Glossip. In 2008, the Supreme Court heard a case on a similar three-drug protocol in Kentucky. The plurality in Baze v. Rees ruled that in order to constitute a cruel and unusual form of execution, the method must pose a “substantial risk of serious harm.” Although the Court held that Kentucky’s three-drug protocol did not meet the substantial risk standard, Justice Stevens, in his concurrence, predicted that debate would ensue:

“I am now convinced that this case will generate debate not only about the constitutionality of the three-drug protocol, and specifically about the justification for the use of the paralytic agent, pancuronium bromide, but also about the justification for the death penalty itself.”

In deciding Glossip v. Gross, will the Justices finally declare the three-drug protocol unconstitutional? If they do, what are the implications for the death penalty?

The Court should recognize the reality that drug manufacturers will continue to refuse to provide the components of the lethal injection protocol. The Court should also recognize that many doctors adhering to the Hippocratic oath will continue to refuse to administer the drugs and advise on the protocol. Oklahoma purports to have strengthened its protocol to ensure a smooth administration of the lethal injection. Yet, these new protocols do not change the fact that midazolam has not even been approved as an anesthetic for human use by the FDA.[3] With waning support from drug manufacturers, doctors, and the FDA, lethal injections are rightfully under extreme scrutiny.

Unfortunately, a troublesome issue lingers in the background of this case. This past week, Oklahoma introduced legislation that would bring back the use of the gas chamber in executions. If the Court invalidates the three-drug protocol, will Oklahoma and other states attempt to “regress” to previous methods of execution? Oklahoma’s death penalty statute already provides for alternative methods, such as death by electrocution and firing squad, in the case that lethal injection is declared unconstitutional.[4] A New York Times editorial quotes legal theorist Austin Sarat on the issue of the method of the death penalty: “The movement from hanging to electrocution, from electrocution to the gas chamber, from gas to lethal injection, reads like someone’s version of the triumph of progress, with each new technique enthusiastically embraced as the latest and best way to kill without imposing pain.” Peering down this tunnel of increasing barbarism should give us pause as a society.

In Baze v. Rees, Justice Stevens mentions “evolving standards of decency that mark the progress of a maturing society,” a phrase previously employed by the Court in death penalty decisions. This country’s evolving standards of decency should be at the forefront in Glossip v. Gross. The Court, in this case, has the necessary weight of evidence to find that the lethal injection method poses a “substantial risk of serious harm” (thereby distinguishing it from Baze). Moreover, the Court must not leave the back door open to regressive standards of decency. The only humane decision? Close the door altogether.

[1] http://www.supremecourt.gov/opinions/14pdf/14a761_d18f.pdf

[2] Note: The other two drugs in the three-drug protocol serve to paralyze the individual and to stop his heart.

[3] http://www.supremecourt.gov/opinions/14pdf/14a761_d18f.pdf

[4] 22 Okl.St.Ann. § 1014


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