By Gabrielle Simeck ’18

December 23, 2014:

The Supreme Court voted on Friday to hear a case, Glossip v. Gross, No.14-7955, involving three death-row inmates who claim the three-drug method often used for lethal injection violates the 8th amendment’s ban of cruel and unusual punishment. It’s been seven years since the Supreme Court last heard and ruled on a case regarding lethal injection: Baze v. Rees, a case which evaluated the constitutionality of the three-drug mixture for lethal injection in Kentucky. The Court upheld most of Kentucky’s lethal injection protocols in their decision. Since that decision, shortages in lethal injection chemicals as well as a number of botched executions have called the three-drug mixture back into question. Dale Baich, one of the lawyers representing the death-row inmates in Glossip encouraged the Supreme Court to “revisit Baze v. Rees because the lethal injection landscape has changed significantly in the last seven years.”

Since Baze v. Rees, lethal injection procedures have become increasingly complex. As mentioned in previous posts, fewer and fewer drug companies are willing to supply drugs used for lethal injections, posing a great problem for states struggling to find the drugs necessary to execute death-row inmates. Extremely limited quantities of available drugs led state governments to use compounding pharmacies to obtain lethal injection chemicals and to experiment with new drug combinations. States have also turned to less effective drugs. For instance, lethal injections were previously administered with traditional barbiturates. However, due to a severe shortage, states have turned to using the less reliable midazolam. According to the New York Times, medical experts testifying at the evidentiary hearing for Glossip v. Gross “said the effects of high doses of midazolam… were too unpredictable to justify its use.” Midazolam was used in the infamous botched lethal injection of Clayton Lockett in April 2014, who reportedly experienced pain during his prolonged 47-minute execution.

The Supreme Court’s decision to hear Glossip also presents another interesting legal issue. Five votes are necessary to issue a stay of execution. Only four votes are required to agree to hear a case. Though the court has a tradition of a “courtesy fifth vote,” a stay of execution is not always granted when the court votes to hear a case. This disparity in votes has dangerous consequences. The Supreme Court may agree to hear a case, but the inmate who brought the case may not live to see its verdict. Since August, states executed four inmates over the objection of four justices. Glossip v. Gross, No. 14-7955 originally had four petitioners and was called Warner v. Gross, No. 14-7955. However, the lead petitioner of the case, Charles F. Warner, was executed eight days before the Supreme Court’s decision to hear the case. The Supreme Court denied Warner a stay of execution with a 5-to-4 vote. The other petitioners of the case are all slated for execution before the Supreme Court hears arguments in April. Lawyers for the three remaining petitioners are hopeful about securing stays of execution. Mr. Baich stated, “the argument will be that since the court has decided it will hear the case, that’s a new circumstance that would warrant a stay.” For Mr. Glossip the stay must come soon. His execution is set for Tuesday.

The Supreme Court may simply uphold their previous verdict in Baze v. Rees. However, the recent problems with lethal injections as well as the medical evidence against the use of midazolam suggest that the Supreme Court may rule that the use of midazolam is unconstitutional while upholding the Death Penalty. Furthermore, a recent court case indicates the court is moving towards a strict interpretation of the 8th amendment. In 2002, the Supreme Court ruled that no person with intellectual disabilities could be executed. States quickly began to work around the 2002 ruling by creating impossible intellectual disability standards and tests. In 2014, the Supreme Court heard Hall v. Florida and ruled unconstitutional a Florida law which made proving intellectual disability almost impossible. In the decision, Justice Anthony Kennedy wrote, “the states are laboratories for experimentation, but those experiments may not deny the basic dignity the Constitution protects.” Perhaps the Supreme Court will decide that the three-drug lethal injection procedure, like the disabilities standard, represents a cruel punishment depriving death-row inmates of their basic right to dignity.

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