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Charles Warner was put to death in Oklahoma on January 15 in the state's first execution since last year's botched lethal injection. In his dying moments, he said, "My body is on fire." (Photo: OK Department of Corrections/AP)

Supreme Court Agrees to Hear Lethal Injection Suit, But Won't Stay Executions

Men scheduled to die say Oklahoma's lethal injection method violates constitutional rights

Nadia Prupis

The U.S. Supreme Court has announced it will hear a case on the constitutionality of Oklahoma's death penalty drug cocktail, which critics say causes intense pain during executions.

The court will hear the case of Glossip v. Gross, filed last summer by 21 inmates on Oklahoma's death row who say the lethal injection violates their Eighth Amendment rights. Up until last week, the case was known as Warner v. Gross, but was changed after plaintiff Charles Warner was executed on January 15.

The new lead petitioner, Richard Glossip, is set to die Thursday. He was convicted of a 1997 contract killing. Warner, Glossip, and two other men on death row were all denied stays of execution this month. As the New York Times explains, "It takes the vote of five justices to stay an execution, but only four to agree to hear a case."

The case argues that the first of the drugs administered in the procedure—midazolam—is not strong enough to sedate the body for the two injections that follow, including one to induce paralysis and one to stop the heart.

Dale Baich, an attorney representing the three inmates, said Friday he was pleased that the court was taking on the case.

"The drug protocol used in Oklahoma is not capable of producing a humane execution, even if it is administered properly," Baich said. "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 drug protocols."

Warner was scheduled to die in April 2014, but his execution was delayed over concerns about the drugs used in the cocktail after the botched lethal injection of Clayton Lockett earlier that same night. Lockett's execution, which lasted 43 minutes and saw him writhing and groaning on the gurney after being declared unconscious, prompted Oklahoma legislators to put a halt on lethal injections to conduct an investigation into those chemicals. The state then resumed the practice after increasing the dosage in the lethal cocktail. The drugs used were not changed.

Prior to Warner's death, medical experts testified at an evidenciary hearing that the effects of higher doses of midazolam are too unpredictable and may not be enough to induce a coma. Midazolam has been used in several other lethal injections in other states, including Florida, Ohio, and Arizona; without a proper sedative, medical experts said, the drugs used to stop the heart will cause excruciating pain.

A state witness defended the use of midazolam in a Supreme Court brief on Oklahoma's use of the protocol, but Justice Sonia Sotomayor, who wrote the dissenting opinion in Warner's case, said the witness's opinion was suspect. He "cited no studies, but instead appeared to rely primarily on the web site," Sotomayor wrote.

The court denied Warner's stay in a 5-4 vote. During his execution, Warner did not appear to be in physical distress, but said in his dying moments, "My body is on fire."

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