Supreme Court will hear challenge to Oklahoma execution drug

A week after the Supreme Court by a 5-4 vote cleared the way for an Oklahoma man to be executed using a controversial new drug, the justices agreed to hear a legal challenge that the drug amounts to cruel and unusual punishment.

The sudden turn of events after the execution of Charles Warner apparently reflects not a change of heart, but the narrow conservative-versus-liberal divide on the high court.

It takes only four of the nine justices to agree to hear a legal claim, but a majority of five is needed to issue a ruling, including stopping a pending execution.

As a result, it appears that the liberal justices voted to the hear the case, even though conservatives stood firm in their position that the drug is legal and ultimately have the votes to uphold its use.

It marked the first time since 2008 that justices have agreed to intervene on the issue of execution by lethal injection.

When Oklahoma was about to execute Warner, a child murderer, on the night of Jan. 15, Justice Sonia Sotomayor and three of her liberal colleagues voted in dissent to halt the execution. She said states were experimenting with “new and scientifically untested methods of execution.”

If midazolam, the disputed new drug, did not work effectively to sedate the inmate, he could suffer “searing, unnecessary pain before death,” Sotomayor wrote.

Witnesses reported that during his execution, Warner said, “My body is on fire,” once the lethal drugs were introduced into his system. He stopped breathing within a few minutes.

Warner’s lawyers had filed a full appeal before the high court asking them to rule on the constitutionality of this execution procedure, and they also named three other inmates facing death in Oklahoma, including Richard Glossip.

On Friday afternoon, the court announced that it had voted behind closed doors to hear the case of Glossip vs. Gross and decide the same issue posed by Warner’s case.

Dale Baich, a lawyer for the Oklahoma inmates, said he was pleased that the court would review the drugs now being used for lethal injections.

“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,” Baich said.

A federal judge in Oklahoma and the U.S. appeals court in Denver had approved the drug concoction before Warner’s execution. Judges accepted the state’s contention that a large dose of midazolam would sedate the inmate and the two other drugs would stop his heart.

The high court in 2008 upheld the use of a lethal injection in a Kentucky case, ruling then there was no reason to believe that officials could not carry out an execution humanely.

Since then, however, Oklahoma, Ohio and Arizona have carried out apparently botched executions in which the inmates seemed to writhe in pain or took hours to die. Last April, convicted Oklahoma murderer Clayton Lockett gasped and tried to get off the table while he was being put to death. Officials later said they had failed to properly inject a vein in his arm.

The court does not disclose who voted to hear an appeal, but it is presumably the four who voted to stop the Warner execution. They are Justices Sotomayor, Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan.

Arguments will be heard in late April, and the court will rule by the end of June.

david.savage@latimes.com