September 22, 2020

Oklahoma asks Supreme Court to delay scheduled executions


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Oklahoma-Death-PenaltyBy Marcia Coyle, From The National Law Journal
Oklahoma’s attorney general on Monday asked the U.S. Supreme Court to put on hold three scheduled executions until the justices rule in a challenge to the state’s lethal-injection protocol or officials find alternative drugs to use.
Although the high court on Jan. 23 agreed to review Glossip v. Gross, a challenge by three Oklahoma death row inmates, it did not delay their executions.
Richard Glossip’s execution is set for Thursday. The executions of John Grant and Benjamin Cole are scheduled to follow on Feb. 19 and March 5, respectively.
“It is important that we act in order to best serve the interests of the victims of these horrific crimes and the state’s obligation to ensure justice in each and every case,” Attorney General Scott Pruitt said in a written statement.
“Two federal courts have previously held the current protocol as constitutional, and we believe the United States Supreme Court will find the same,” he said. “We thus support stays until a decision in the state’s favor is final or until viable alternative drugs can be obtained.”
A Pruitt spokesman issued a statement explaining the move:
“Seeking these stays of execution until a Supreme Court decision in the state’s favor is final or until viable alternative drugs can be obtained must happen in the Supreme Court,” it said. “The Oklahoma Constitution grants the ability of a 60-day reprieve to the governor of Oklahoma, however this case will likely not be resolved in that time frame. Likewise, the application must be filed with the Supreme Court instead of the Oklahoma Criminal Court of Appeals because there is no pending case in the Oklahoma court.”
Arizona assistant federal defender Dale Baich, who represents one of the three Oklahoma inmates, said, “We agree that it’s appropriate that the executions in Oklahoma should be stayed while the case is being reviewed by the Supreme Court.” He said the inmates’ lawyers were preparing a response for the court to the state’s application for stays.
The justices’ grant of review in Glossip came just a week after they had refused, by a vote of 5-4, to halt the execution of Oklahoma inmate Charles Warner, who was part of the Glossip lethal-injection challenge.
Five votes are needed to stay an execution but only four are required to grant review of a petition. Warner was executed last week. The four justices who dissented from denial of a stay for Warner presumably carried the day in the grant of review in Glossip. They were justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.
Oklahoma’s lethal-injection protocol calls for the use of three drugs: midazolam hydrochloride, rocuronium bromide and potassium chloride. The Glossip challenge centers on midazolam, which, the inmates contend, is being used improperly as an anesthetic and may cause severe pain while the other drugs in the protocol take effect.
Midazolam was used in the botched Oklahoma execution of Clayton Lockett and Arizona’s execution of Joseph Wood last year.
In her dissent from the denial of an execution delay for Warner, Sotomayor wrote: “Lockett was able to regain consciousness even after having received a dose of midazolam—confirmed by a blood test—supposedly sufficient to knock him out entirely. Likewise, in Arizona’s July 23, 2014, execution of Joseph Wood, the condemned inmate allegedly gasped for nearly two hours before dying, notwithstanding having been injected with the drug hydromorphone and 750 milligrams of midazolam—that is, 50 percent more of the drug than Oklahoma intends to use.”
In his application to the court, Pruitt said the state is continuing its search for sodium thiopental and pentobarbital for use in its executions. Those two drugs, he wrote, were approved previously for use in executions and the state would use them instead of midazolam. If the state obtains sufficient quantities of one or both drugs, he added, it would ask the justices to vacate the stays of execution.
A nationwide shortage of sodium thiopental, an anesthetic, has forced states to turn to new drugs and compounding pharmacies that are not regulated by the U.S. Food and Drug Administration.
Photo: California Department of Corrections
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