« "Where Do We Go from Here? Mass Incarceration and the Struggle for Civil Rights" | Main | Another remarkable exoneration thanks only to NC Innocence Inquiry Commission »

January 23, 2015

Seven years after Baze, Supreme Court takes up another lethal injection challenge

As reported in this new USA Today piece, taking up a "case that could have broad implications for hundreds of death row inmates, the Supreme Court will consider whether a drug protocol used in recent lethal injections violates the Constitution's prohibition on cruel and unusual punishment."  Here is more:

The justices agreed Friday to consider a case originally brought by four death-row inmates in Oklahoma -- one of whom was put to death last week, after the court refused to block his execution with a combination of three drugs that has caused some prisoners to writhe in pain.

Because the court's four liberal justices dissented from the decision to let that execution go forward, it presumably was their votes in private conference Friday that will give the issue a full hearing in open court. Only four votes are needed from the nine-member court to accept a case. It will likely be heard in April, though it could be held over until the next term begins in October.

Lawyers for Charles Warner and three other convicts set for execution in Oklahoma over the next six weeks sought the Supreme Court's intervention after two lower federal courts refused their pleas. While the court's conservatives refused to stop Warner's execution, the request for a full court hearing had been held for further consideration.

The lawyers claim that the sedative midazolam, the first drug used in the three-drug protocol, is not approved by the Food and Drug Administration as a general anesthetic and is being used in state executions virtually on an experimental basis. They say inmates may not be rendered unconscious and could suffer painfully as the other drugs in the protocol are administered.... "States now experiment with various drug formulations that have resulted in multiple malfunctioning executions — indeed, spectacles — over the past year," the challengers' brief says....

The court's four liberal justices -- Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan -- voiced deep concern about the three-drug protocol in their eight-page dissent last week. They also dissented last September when the court rejected a stay application from a Missouri inmate executed with the same drug.

I presume this cert grant will halt all scheduled executions in Oklahoma until the Supreme Court rules.  Left unclear, however, is whether other states will be able to move forward with executions while this case is pending.  This DPIC page with scheduled executions suggest that at least a half-dozen states have more than a dozen serious execution dates scheduled before the Supreme Court is likely to resolve this new case from Oklahoma.

I am sure that these states will try to move forward with executions, especially if their protocols are dissimilar to what Oklahoma does in executions. But I am also sure that death row defendants and their lawyers will urge states to postpone all execution until the Supreme Court rules in this new case (as happened when the Supreme Court first took up this issue eight years ago in Baze v. Kentucky). In short, here we go again!

Recent related posts:

January 23, 2015 at 04:54 PM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference Seven years after Baze, Supreme Court takes up another lethal injection challenge:


Seems like a dangerous game of chicken that counsel for these offenders are engaged in. Baze was already unfriendly enough and I could well see an outcome here being even worse from their standpoint.

Posted by: Soronel Haetir | Jan 23, 2015 6:29:38 PM

What is amazing is that Baze is still alive 8 years later and nowhere near being executed in Kentucky.

Posted by: DaveP | Jan 23, 2015 6:35:28 PM

Why should any stays be granted because of a cert. grant? I'd love to see the legal reasoning behind that position.

Posted by: federalist | Jan 23, 2015 6:53:26 PM

Actually it will be 7 years this April that Baze was handed down. Florida has used midazolam on over 10 executions with no issues. It shouldn't be a problem if the other states follow the same protocol.

Posted by: DaveP | Jan 23, 2015 7:09:29 PM

I suspected this would happen when the Court denied the stay but not the writ of certiorari with the petition. The 4 dissenters prevailed in conference today.

Posted by: DaveP | Jan 23, 2015 7:14:08 PM

I assume that one guy's petition is being dismissed as moot. Frankly, I'm shocked they couldn't get one Justice to grant the stay in a case that clearly had enough votes for cert. Just as a matter of judicial policy, you don't want it to look like you've pre-judged the issue. And, more importantly, you probably don't want a respondent to have the power to win a case by killing the petitioner.

Although the fact that not one of five Justices felt any inclination to grant a stay tells me they think it's so clear cut that it's not worth their time.

Posted by: Erik M | Jan 23, 2015 7:20:07 PM

The ever so unpredictable Kennedy let it proceed. I think once briefing and argument occurs, a couple of dissents at most are likely.

Posted by: DaveP | Jan 23, 2015 7:28:48 PM

"Seems like a dangerous game of chicken that counsel for these offenders are engaged in. Baze was already unfriendly enough and I could well see an outcome here being even worse from their standpoint."

What game of chicken? Their defendants are scheduled to die very soon, one is already executed, and they are trying everything possible (as is their job) to stop it. I'm unsure really the facts here are worse than Baze, including given the botched executed (or one assumed by many to be botched) and other things. Depending on how the questions are framed, it might be somewhat easier than Baze, where Breyer and Stevens CONCURRED to uphold. Breyer has already voiced concern by joining the dissent from the stay here. It's still likely an uphill battle though the opinion -- like Baze -- might at least be helpful to clarify the rules some for the lower courts.

I'd note too that Richard Glossip is a better defendant than the guy who was executed on other grounds -- http://www.huffingtonpost.com/2015/01/22/richard-glossip_n_6520914.html

The "courtesy fifth" so that a cert grant doesn't become moot in this context is something that was talked about since the 1980s in the death penalty context. Roberts in his nomination hearings made noises about supporting the idea. People have been executed for the lack of such a stay. So, precedent, if not some sense of basic fairness, can be cited to that degree. Now that a case actually was granted though Kennedy and Roberts at least probably would think it looks bad to refuse to provide a fifth.

Posted by: Joe | Jan 23, 2015 8:17:51 PM

I haven't checked (so someone can tell me if I'm wrong), but I really hope that they granted on all cases so they have to at least drop a footnote explaining that one was dismissed as moot because the guy was already executed. Obviously, if they all get executed before an opinion gets released, that would look really bad.

I do agree that their clients are going to be executed if they don't win the case (to the best of their knowledge, obviously things can always change) so they don't have much to lose by filing these petitions. The only argument for not pressing forward is to wait for a better Supreme Court. But not only is that not realistic, it's not their job. Their goal is to represent their clients, not advocate for a political position. And it doesn't make sense to allow what they believe to be a cruel and unusual punishment to proceed just because waiting will be better for some other client not currently dealing with the issue.

Posted by: Erik M | Jan 23, 2015 9:57:45 PM

You know, we could just get rid of the death penalty altogether and avoid these moral quandaries, but the desire for bloodlust overrides that so often...

Posted by: Suzanne | Jan 23, 2015 10:54:34 PM

Suzanne: What are you, a child?

The Supreme Court Justices, no matter any political affiliation or ideology will steer a very precise course.

If it ends the death penalty completely, hundreds if not thousands of lawyers lose their government make work jobs, as tax sucking parasites.

If it unleashes the death penalty, murders and millions of other crimes end by attrition. The deceased have a very low recidivism rate.

So the Court will chart a course that will maximize lawyer employment, the current one, of a few executions and massive appellate disputes.

Posted by: Supremacy Claus | Jan 24, 2015 5:36:49 AM

People incarcerated for life also have a low recidivism rate so the argument that speeding up the execution process reduces crime for that reason is absurd.

As for banning capital punishment. There may be a bit of an irony that many attorneys would gladly lose their job if capital punishment were ended, but to suggest that's a roadblock simply isn't true. Plenty of states have ended capital punishment and the lawyers in those states didn't block the process. I mean we're talking about places like New Jersey and the District of Columbia, where there are plenty of lawyers.

Posted by: Erik M | Jan 24, 2015 7:36:01 AM

Erik M. From HBO, a filthy, hate America, hate speech, left wing propaganda outlet.

Gladiator days. Thank the lawyer.


At some point, the families and victims will settle scores with the lawyer profession, their mortal enemy.

Posted by: Supremacy Claus | Jan 24, 2015 10:54:36 AM

Erratum: "Breyer has already voiced concern by joining the dissent from the stay here."

Breyer joined Sotomayor's dissent (for four justices) from the REFUSAL of the stay of the execution of Charles Warner (then executed), who was one of four defendants in this petition:


To answer Erik M's question, you can see from this link that the cert was granted for Glossip "et. al."

The file number is "14-7955" which is also found on that dissent -- http://www.supremecourt.gov/opinions/14pdf/14a761_d18f.pdf

So, I take it that Warner was part of that "et. al." The moot footnote has not been forthcoming to my knowledge at this time.

Posted by: Joe | Jan 24, 2015 12:04:01 PM

here's a thought. Maybe if they conducted their business in a timely fashion. So it didn't take almost 2 years from taking up the case to getting a decision. But the biggie. When they do finally render the decision if they would stop making them so mealy mouthed that pretty much ANYTHING can be read into them. They and the poor saps trying to understand and use the decision might know what the fuck it actually means.

case in point. the total gutting of the ex post rule in the constitution. I'm still trying to find the vote where that was hanged from "NO ex post" to "NO ex post except in civil crimes"

Posted by: rodsmith | Jan 24, 2015 10:58:37 PM

What would be the legal authority for the stay of Oklahoma executions while this is pending? Seems to me that a cert. grant isn't a reason for a stay.

Posted by: federalist | Jan 25, 2015 2:40:18 PM

The legal authority for all stays is the All Writs Act. That's not just stays of execution, but stays of the disbursement of funds, stays of demolition of property, etc., if that's the only way to preserve the status quo. It can issue a stay while it considers a cert petition that's already been filed. It can issue a stay to give someone time to file or oppose a cert petition. On rare occasions, it has even issued a stay to preserve its future jurisdiction to review a case that's still being litigated in another court, if that stay is essential to preserve the status quo.

Posted by: arfarf | Jan 26, 2015 8:02:40 AM

Nah, the All Writs Act doesnt override specific limitations on stays of execution.

Posted by: federalist | Jan 26, 2015 9:07:24 PM

What "specific limitations on stays of execution" are you talking about? If there any habeas limitations they don't count because this isn't habeas; it's a § 1983 action in federal court. If there are any state law limitations they don't count because the action here isn't in state court or governed by state law. Far as I can see, there aren't any "specific limitations on stays" except the obvious one: that there has to be an active warrant before there is anything to stay.

Posted by: arfarf | Jan 27, 2015 1:03:23 AM

arfarf, surely you are aware of the prerequisites for stays of execution in 1983 cases, probability of success on merits, timely filing of claim, etc.

Posted by: federalist | Jan 27, 2015 11:26:44 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB