The Supreme Court on Friday agreed to decide a case on the constitutionality of the new combinations of drugs that some states are using to execute prisoners and which critics say cause intense suffering.
The court will hear a challenge to Oklahoma’s choice of drugs even though the justices declined last week to stop an execution there that used the contested chemicals.
With the addition of this case, the court’s term seems likely to end with three major decisions — on same-sex marriage, on the fate of the Affordable Care Act and, now, on the administration of capital punishment.
In April, Oklahoma botched the execution of Clayton D. Lockett, who appeared to moan and struggle after the drugs were administered, then died in the execution chamber 43 minutes after the injections had begun.
That led the state to suspend lethal injections and try to improve its procedures. Oklahoma decided to continue using the sedative now under legal challenge, but at a higher dosage.
The case will provide the Supreme Court’s first evaluation of lethal injections during a time when traditionally used drugs have become scarce and states have tried new combinations and refused to identify the sources of the lethal chemicals.
“Lethal injections are a subject on which everyone deserves clarity, but the law has been thoroughly chaotic for the last seven years,” said Eric M. Freedman, a law professor at Hofstra University. “The court’s decision to address the confusion at last is welcome.”
The case the court agreed to hear Friday, Glossip v. Gross, No. 14-7955, involves three inmates who said the state’s three-chemical procedure violated the Eighth Amendment because it posed a significant risk of terrible suffering.
The case originally included a fourth inmate, Charles F. Warner. He was executed Jan. 15 after the Supreme Court denied his request for a stay by a 5-4 vote. Journalists who witnessed the 18-minute execution said that Warner had not seemed to suffer great pain and that he had appeared to lose consciousness quickly.
Warner, 47, was sentenced to death for sexually assaulting and murdering an 11-month-old girl in 1997.
It takes the vote of five justices to stay an execution, but only four to agree to hear a case.
“We’re excited that the court took the case,” said Dale Baich, a lawyer for the condemned prisoners.
Another Oklahoma prisoner and plaintiff in the case, Richard Glossip, who was convicted of a 1997 contract murder, is scheduled for execution Thursday.
“Our immediate concern now is to try to get a stay for Mr. Glossip,” Baich said. “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.”
“The time is right for the court to take a careful look at this important issue, particularly given the bungled executions that have occurred since states started using these novel and experimental drugs protocols,” Baich said.
Justice Sonia Sotomayor dissented from the denial of a stay for Warner, saying the case presented two questions worthy of the court’s consideration.
The first, she said, was whether the inmates should be required to specify an alternative method of execution, as courts have demanded in Oklahoma and elsewhere, before challenging the method to be used by the state.
“It would be odd if the constitutionality of being burned alive, for example, turned on a challenger’s ability to point to an available guillotine,” Sotomayor wrote.
The second issue, she wrote, was whether the state should be using midazolam, a sedative, as its first chemical. Medical experts testifying on behalf of the inmates at an evidentiary hearing said the effects of high doses of midazolam, which Oklahoma adopted, were too unpredictable to justify its use.
Midazolam was also involved in prolonged, possibly painful executions last year in Ohio and Arizona. The drug has also been used by Florida in a dozen executions at the start of a three-drug combination, similar to that used in Oklahoma. The sedative is intended to render the prisoner unconscious before injection of a paralytic and then a caustic heart-stopping agent. If it does not do so, medical experts say, the inmate will suffer excruciating pain, which could go undetected because the prisoner would be paralyzed and unable to communicate.
Missouri also has used midazolam as a sedative in at least nine executions, according to chemical logs. The state uses pentobartital to stop the condemned inmate's heart.
Death-penalty opponents and defense attorneys have criticized Missouri's procedure. The state, like others, refuses to name the compounding pharmacy where it obtains pentobarbital or to say if or how execution drugs are tested.
Gov. Jay Nixon said courts have repeatedly allowed Missouri's protocol. The state executed 10 men in 2014, a record for Missouri. A stay prevented only one execution last year and that involved a man with a unique medical condition. His case is in federal appeals court.
Those states have switched to midazolam because companies making the traditionally used barbiturates, which have a longer track record and deeper anesthetic properties, have refused to provide them for executions.
In the Supreme Court brief defending Oklahoma’s drug protocol, state officials said, “Oklahoma chose midazolam because the state has a sacred duty to enforce its criminal judgments, and the protocol pioneered by Florida represents the best available mechanism to carry out these judgments.”
An expert witness for the state had defended the chemical, but Sotomayor wrote that his testimony was open to question. He “cited no studies,” Sotomayor wrote, “but instead appeared to rely primarily on the web site www.drugs.com.”
She added that she was surprised that the U.S. district court judge had ruled for the state, allowing executions to proceed.
“It is true that we give deference to the district courts,” Sotomayor wrote. “But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.”
“We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain,” she added. “Here, given the evidence before the district court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.”
Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the dissent on the denied stay last week.
In its order Friday, the Supreme Court offered no explanation for agreeing to review the issue.
The Supreme Court last considered lethal injection protocols in 2008 in Baze v. Rees, which upheld Kentucky’s use of what was then the three-drug mixture used in most executions.
The Star’s Matt Campbell contributed to this report.