Supreme Court hears arguments in lethal injection case

The Supreme Court appeared divided Wednesday during heated arguments in a case challenging Oklahoma’s use of a three-drug lethal injection ‘cocktail,’ which death row inmates argue constitutes cruel and unusual punishment.

The debate centers on whether the sedative drug Midazolam, which is administered first in the execution process, is powerful enough to keep inmates from feeling the affects of the other two drugs.

Chief Justice John Roberts said the court is being asked to rule that executions by lethal injection in Oklahoma are unconstitutional without any alternative.

“And you have no suggested alternatives that are more humane,” he told attorney Robin Konrad, who is represents the inmates.

Konrad said the state just passed a statute that would allow it to carry out its executions using nitrogen gas, if the court were to find its lethal injection protocol unconstitutional.

“Are you suggesting that’s OK with you?” Roberts asked.

“The legislation has said that this is a painless method,” Konrad said. “I don’t know. They haven’t come out with any information about how it will be carried out.”

But sparks flew during the heated arguments, when members of the court’s liberal wing accused the state of misrepresenting evidence and information in arguing Midazolam is constitutional.

“I am substantially disturbed that in your brief you made factual statements that were not supported,” Justice Sonia Sotomayor told Oklahoma Solicitor General Patrick Wyrick, who represented the state in the case. “Nothing you say or read to me I’m going to believe, frankly, until I see it with my own eyes.”

The case, known as Glossip v. Gross, stems from a botched execution last spring, in which 38-year-old inmate Clayton Lockett writhed and cried out in pain before dying of a heart attack.

If the court rules against Oklahoma, the decision could affect other states that use similar forms of lethal injection.

Until 2010, Oklahoma used a cocktail of drugs comprised of sodium thiopental, pancuronium bromide and potassium chloride, but then became unable to obtain the first drug, which is a fast-acting sedative.

In 2014, according to court documents, the state swapped the alternative sedative drug it had been using with Midazolam. The new cocktail was first used in executing Lockett. 

Following Lockett’s death, 21 inmates on death row filed a lawsuit challenging the states’ procedure. Four of those inmates — Charles Warner, Richard Glossip, John Grant and Benjamin Cole — are now appealing the 10th Circuit Court of Appeals decision that denied their request for a preliminary injunction.

Though Justice Elena Kagan appeared sympathetic to the inmates’ case that Midazolam was not an effective sedative, Sotomayor suggested the state remand the case back to the district court given new evidence presented by the state’s attorney.