Oklahoma Will Asphyxiate Death Row Inmates If SCOTUS Strikes Down Lethal Injection

by IAN MILLHISER –

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The state of Oklahoma isn’t about to let something like a Supreme Court decision prevent it from executing inmates.

On Friday, Gov. Mary Fallin (R-OK) signed legislation establishing that death row inmates will be asphyxiated with nitrogen gas if the state is unable to obtain lethal injection drugs or if the Supreme Court strikes down that method of execution. The bill responds to two developments that currently stand between the state and its desire to kill several inmates — a shortage of execution drugs and a Supreme Court case that could potentially limit the kinds of drugs Oklahoma may use in executions.

The shortage arises largely from opposition to the death penalty among drug manufacturers and foreign governments. Many pharmaceutical companies, especially European and Asian companies that have historically made drugs used in executions, refuse to distribute their products if they will be used to kill inmates. Meanwhile, foreign bodies such as the European Commission imposed tight restrictions on the export of many drugs that can be used in executions. As a result, many states have turned to less-reliable drugs — or to drugs produced through unreliable methods — in order to carry out executions.

That’s why the Supreme Court is now involved. Earlier this year, the Court agreed to hear three Oklahoma inmates’ cases challenging the state’s plan to use a drug called midazolam during their execution. Oklahoma, like many states, uses a three-drug protocol in its executions — an anesthetic to ensure that the inmate does not feel pain, a paralytic and then a third drug that actually kills the inmate. The state intends to use midazolam as the first part of this protocol, but it is not at all clear that the drug is effective when used for this purpose. Rather, as Justice Sonia Sotomayor explained in a dissenting opinion last January, research indicates that midazolam has a “ceiling effect” — it is effective as a pain-killer up to a certain point but higher doses beyond that point do not increase its effectiveness.

Yet, while the Court is scheduled to hear a challenge to Oklahoma’s use of this drug, there are two reasons to suspect that a majority of the Court will ultimately hold that it is acceptable to use midazolam in executions despite concerns that it may not adequately dull inmates’ pain. The first is that, while the Court did agree to hear three inmates’ cases, there were actually four inmates who petitioned the Court. The justices allowed that fourth inmate, Charles Warner, to be executed before they ultimately took the remaining three cases and stayed those executions — although the Court’s four more liberal members did dissent from the decision to allow Warner to die.

Simply put, the fact that the justices permitted Oklahoma to kill Warner is not a hopeful sign that a majority of the Court viewed his execution as constitutionally doubtful.

The other sign that the Court may not strike down Oklahoma’s execution protocol is a 2008 decision called Baze v. Rees. Baze involved a challenge to a somewhat different execution protocol used by the state of Kentucky prior to the execution drug shortages. Though the legal issues presented by Baze are somewhat distinct from the issues presented by the Oklahoma case, it is worth noting that Justice Anthony Kennedy, who sometimes votes with the Court’s left-of-center bloc on death penalty cases, did not crossover in Baze. This suggests that Kennedy may be less sympathetic to challenges to a state’s method of execution than he is to challenges alleging that certain classes of people — such as juvenile offenders or the intellectually disabled — may not be executed.

In any event, the law Fallin signed on Friday will likely permit the state to move forward with the three inmates’ executions regardless of how the justices rule.

 

Reprinted with permission from Think Progress, a branch of The Center for American Progress