Goodbye Hello: Supreme Court Takes On Lethal Injection Protocol - Sparrow Law Firm

The U.S. Supreme Court has agreed to hear the appeal of three inmates on Oklahoma’s death row. They are challenging the use of the sedative midazolam in that state’s lethal injection executions. In theory, the drug renders the inmate unconscious in an effort to spare him or her the excruciating pain that the remaining two drugs in the protocol would undoubtedly cause.

Midazolam is Oklahoma’s and other states’ answer to the Eighth Amendment prohibition of cruel and unusual punishment. The problem, these inmates say, is that there is no guarantee that the drug will, in fact, render them incapable of feeling pain. Further, they argue, midazolam is not meant to be an anesthetic.

The lower courts disagreed.

The Supreme Court will hear arguments in April. The questions presented by the appellants first address the constitutionality of the three-drug execution protocol if midazolam is not producing the coma-like state it is supposed to. The inmates also ask if they must identify an alternative that will produce the desired effect regardless of whether the existing protocol is unconstitutional. And, they ask if the court will affirm its ruling in a 2008 case that allowed lethal injection executions to be postponed only if there is a clear risk of severe pain.

A couple of things to note about the case. First, the original appeal came from four inmates on death row. The Supreme Court denied stays of execution for all four appellants just a week before it agreed to hear this case. The very night the court refused the stay, the state of Oklahoma executed one of the inmates. Another appellant is scheduled for execution before the end of January.

Second, the man that was executed had gone through two jury trials. The Oklahoma Court of Criminal Appeals reversed the guilty verdict from the first trial, citing a reason that should be familiar to North Carolinians: juror bias and ineffective assistance of trial counsel.

We have been arguing about the death penalty in North Carolina for years. The last execution was carried out in 2006. There have been questions of jury bias, of course, but also about whether participating in an execution is a violation of medical ethics. The General Assembly gave practitioners an out in2013. (We wrote about the bill in April 2013.)

It will be interesting to see how the Supreme Court’s decision affects North Carolina state law.


SCOTUS Blog, “Court to rule on lethal-injection protocol,” Lyle Denniston, Jan. 23, 2015

Warner v. Trammell, 520 F. App’x 675 (10th Cir. 2013) cert. denied, 134 S. Ct. 924, 187 L. Ed. 2d 798 (2014), via WestlawNext