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 The high court just last week allowed the execution of a convicted
killer in Oklahoma over the objection of its four liberal members.
The three-drug process used by Oklahoma prison officials has been
under scrutiny since the April 2014 botched execution of convicted
murderer Clayton Lockett. He could be seen twisting on the gurney
after death chamber staff failed to place the IV properly.
The inmates challenging the state's procedures argue the sedative
used by Oklahoma, midazolam, cannot achieve the level of
unconsciousness required for surgery, making it unsuitable for
executions.
The case draws fresh attention to the ongoing debate over whether
the death penalty should continue in the United States at a time
when most developed countries have abandoned it.
 The Death Penalty Information Center, which compiles execution
statistics, says only seven of the 32 states that still have the
death penalty on the books executed inmates in 2014, with most
coming in just three states: Texas, Missouri and Florida. The group
also says the number of executed inmates has hit a 20-year low.
The Supreme Court case directly affects only Oklahoma. But Florida
uses a similar protocol so death row inmates there may seek stays
based on the pending case.
On Jan. 15, the high court on a 5-4 vote declined to halt Oklahoma's
execution of Charles Warner, convicted of raping and murdering an
11-month-old baby.
Although five votes are needed to grant a stay application, only
four are required for the court to take up a case.
The inmates say Oklahoma's three-drug protocol can cause extreme
pain, violating the Constitution's Eighth Amendment prohibition on
cruel and unusual punishment.
After Lockett's execution, Oklahoma revised its protocols by
increasing the amount of midazolam used to render an inmate
unconscious. Lower courts endorsed the change, as did the divided
Supreme Court.
Justice Sonia Sotomayor, one of the liberals who dissented in
Warner's case, wrote an opinion at the time saying she was “deeply
troubled by this evidence suggesting that midazolam cannot be
constitutionally used as the first drug in a three-drug lethal
injection protocol.”
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But the fact that none of the court's five conservatives, including
regular swing vote Anthony Kennedy, voted to grant the stay
application suggests the inmates face an uphill battle to win their
case.
The inmates want the court to decide whether its 2008 Baze v. Rees
ruling upholding Kentucky's three-drug execution protocol applies to
Oklahoma's procedures. The inmates' lawyers say Oklahoma's protocol
is different, so the reasoning of the 2008 ruling should not apply.
"The drug protocol used in Oklahoma is not capable of producing a
humane execution, even if it is administered properly," said Dale
Baich, an attorney for the inmates.
Oklahoma Attorney General Scott Pruitt said, "We will continue to
defend the constitutionality of this protocol in order to preserve
(the Department of Corrections') ability to proceed with the
sentences that were given to each inmate by a jury of their peers."
The inmates are Richard Glossip, John Grant and Benjamin Cole.
Glossip, who arranged for his employer to be beaten to death, is
scheduled to be executed on Jan. 29. Grant, who stabbed a
correctional worker to death, is due to be executed on Feb. 19.
Cole, convicted of killing his 9-month-old daughter, is scheduled
for execution on March 5.
The case will be argued in April, with a decision due by the end of
June.
(Reporting by Lawrence Hurley; Editing by Will Dunham)
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