On Wednesday, the Supreme Court will hear a constitutional challenge to Oklahoma’s lethal-injection drug protocol, which last April left a man writhing in agony on the killing table for 43 minutes.
In the spectacularly botched execution, the condemned man, Clayton Lockett, first received an untested sedative, midazolam, but it failed to knock him out. As prison officials scrambled to pump the deadly drugs into his veins, he awoke, tried to sit up and said, “The drugs aren’t working,” before finally succumbing to a heart attack.
After that debacle, Gov. Mary Fallin of Oklahoma ordered an independent review of the state’s execution procedures, which ultimately blamed a misplaced intravenous line in Mr. Lockett’s groin. In December, a federal judge ruled that the state’s procedure was constitutional, clearing the way for the executions of four more men. Those inmates turned to the Supreme Court to stay their executions on the grounds that the drug is not an effective anesthetic and creates an intolerable risk of pain, but the court refused. Justice Sonia Sotomayor, writing for the dissent, pointed out that the state expert who testified that midazolam works relied on the website drugs.com.
One week later, the justices voted to take up the case, Warner v. Gross, but they had to change its name because the original lead plaintiff, Charles Warner, had been executed in the meantime. It is now named after the man next in line to die, Richard Glossip. (The court put the remaining executions on hold pending the ultimate ruling.) The justices considered lethal injection once before, in 2008, when they upheld Kentucky’s protocol, which did not include midazolam. The question before them now is whether the use of midazolam violates the Eighth Amendment’s ban on cruel and unusual punishment. Because this is the death penalty, where logic often does not apply, the justices will also consider the bizarre question of whether someone challenging a lethal-injection protocol must identify drugs the state could use that would cause less pain.
Oklahoma, perhaps sensing that such lawsuits are not going away, is not waiting for the court to decide. On April 17, Governor Fallin signed a bill approving another method of supposedly pain-free execution: nitrogen gas. There are no reports of nitrogen gas ever being used to carry out a death sentence, but that did not faze her or Oklahoma legislators, who voted almost unanimously in favor of the law.
State Representative Mike Christian, a former highway patrol trooper who wrote the bill, called nitrogen gas “fast and painless” and “foolproof.” Of course, that is exactly what people said about lethal injection when it began to be used in the 1970s. In fact, versions of this debate have been going on for more than a century, as states have continued to look for more “civilized” or “humane” execution methods — from the electric chair to cyanide gas to lethal injection. And each time, the new method has resulted in executions just as tortured and brutal as those under its predecessors.
Fortunately, the search for more ways to kill may be losing steam as public views change. A recent poll by the Pew Research Center found that only 56 percent of Americans approve of capital punishment — the lowest level in four decades. Among Democrats the number is 40 percent. But even in deep-red Nebraska, lawmakers voted overwhelmingly this month to abolish the death penalty.
Whatever the justices decide about Oklahoma’s protocol, more Americans are finding that there is no form of state-sponsored killing that can be civilized or humane.
Source: The New York Times, Editorial, April 25, 2015
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