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January 15, 2015

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past."  Here is more:

The court's five conservative justices denied the request for a stay of execution without comment.  But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.  It is true that we give deference to the district courts.  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.  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.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.  Petitioners have committed horrific crimes, and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997.  This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident."  Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:  This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident.  Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

January 15, 2015 at 08:49 PM | Permalink

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Comments

I assume "Justice Sotomayor" (and the other three justices who joined her dissent) would feel "some relief" that an "AP Report" so reported.

Nonetheless, part of the concern here is the the drugs will work wrongly in a fashion where a paralyzing agent will block awareness to others that the person was suffering -- the onlookers very well might not see anything wrong -- so perhaps, putting aside the limits of news reports, "some" is appropriate.

Likewise, the dissent flagged that the "challenger must show [] risk" of severe pain of a certain variety. It is appreciated if things went w/o a hitch, but "risk" means just that -- there is a CHANCE of a certain degree that sometimes is too high. Safeguards seem of little value sometimes until something comes up.

As to "finally," the delay here in part at least was a result of state action, including a past botch execution. I personally think him continuing to be in prison as he has been for over a decade would be the most appropriate tack here. Like the vast majority of murderers in this country.

But, anyway, since the bottom line of the dissent is that -- particularly given past botched executions (the subject of a recent book) -- there was enough "risk" here to accept a stay. The fact, apparently, we are lucky this time might not relieve each of the four dissenters THAT much.


Posted by: Joe | Jan 15, 2015 10:00:24 PM

Once again the press is for the LIBERAL NUTS. The execution went off without a hitch in both OK and FL and GA the day before. The lib left has been proven wrong yet again. Its the looney left anti-dp fools in EU and USA that got the BEST and quickest DRUGS banned for sale in the usa. Its their fault the States have to resort to 3rd and 4th preferred drugs. SCOTUS has repeatedly said KILLERS are NOT entitled to a pain free execution. Plain and simple.

Posted by: DeanO | Jan 15, 2015 10:16:22 PM

According to Justice Sotomayor, in the face of a District Court finding, which was not an abuse of discretion, the Supreme Court should have stayed the execution of a baby-raper. All because the "wise [sic] Latina" proclaims herself "troubled." Waaaaah!!! Waaaah!!

Who cares if this criminal suffered for a short time? When Sotomayor shows a modicum of concern for innocent victims' families jerked around by irresponsible federal courts, then maybe her outsized concern for guilty murderers can be entertained. But given her stony silence about the suffering of victims' families, I have to conclude that she cares more about the suffering of guilty murderers than she does about the suffering of innocent victims.

Posted by: federalist | Jan 15, 2015 11:12:09 PM

DeanO, there have been various botched executions, and the last one had McCain et. al. crying foul. Just as the dissent was joined by four justices & it isn't just about Sotomayor, the concern here goes beyond "liberals." Also, the concern is a certain level of pain, a certain level of risk, is present. See, e.g., Baze v. Rees.

When nothing happens, safeguards are shrugged aside, when something happens it is taken as an act of chance, things you know happen. It's a nifty trick. Works for sports too (go Colts!) -- a well trained team deals with adversity and single things don't lead them to lose the game. Losers then focus on some single play, when the real problem was their overall lack of preparation, not the luck or chance of bad things not happening.

Posted by: Joe | Jan 17, 2015 12:26:31 PM

Interesting example of a dying declaration. Somewhere, an evidence professor has a new hypo.

Posted by: anon | Jan 20, 2015 1:39:11 PM

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