A couple of weeks ago the state of Oklahoma executed murderer Charles F. Warner after the U.S. Supreme Court rejected a last-minute stay. The request was tied to a pending lawsuit in which Warner and three other death row inmates challenged the constitutionality of the state's three-drug lethal injection protocol. Last week the court agreed to hear the full challenge (which The Times editorial board weighed in on here).
At the time, Oklahoma's attorney general, E. Scott Pruitt, defended the protocol, arguing it "has been affirmed as constitutional by two federal courts and has successfully been implemented in Oklahoma, as well as more than 10 similar executions in Florida." He neglected to mention the protocol had also been part of three botched executions, including one in Oklahoma when the execution team missed veins. "We will continue to defend the constitutionality of this protocol in order to preserve [the state's] ability to proceed with the sentences that were given to each inmate by a jury of their peers."
On Monday, Pruitt changed tactics and sought his own stay until the issue is resolved, or until the state can obtain sodium thiopental or pentobarbital, barbiturates whose constitutionality had previously been established. Seeking the stay was a good move. It would be a travesty if Oklahoma executed any more of the original four plaintiffs only to have the Supreme Court rule the new protocol is unacceptably cruel and unusual.
The difference between the old and new protocols involves the first drug used in the procedure. Originally Oklahoma used a barbiturate to render the inmate insensate. When supplies of those drugs -- sodium thiopental and pentobarbital - dried up, it turned to midazalom, which doesn't do what the executioners say it does. "Midazolam is incapable of reliably maintaining a deep, comalike level of unconsciousness," according to medical experts cited in the appeal. That means the later drugs, one that paralyzes the inmate and the other that stops the heart, can cause excruciating pain. In executions in Oklahoma, Ohio and Arizona that involved midazolam (one was a two-drug protocol) the inmates suffered visibly, according to journalists covering the executions. One killing took nearly two hours.
Pro-death penalty people have no problem with the condemned suffering before they breathe their last. Compared to the suffering of many of their victims, the executions are relatively light and easy, they argue. In fact, some believe, a little more suffering wouldn't be bad.
But that's not justice. And it's not the behavior of an advanced, civilized society, even one as inherently violent as ours. If we believe there is nothing to defend in the actions of killers, why are so many of us happy to let the government kill?
But beyond the fundamental immorality of the death penalty, it's hard to find any justification for an execution process that poses substantial risk that the condemned will suffer a painful death. That's cruelty miscloaked as justice.
It's hard to predict, of course, what the Supreme Court will do with this case. It voted 5-4 to deny Warner's stay request, with Justice Sonia Sotomayor writing the dissenting opinion that questioned the lower court's findings of fact and the states' efforts to find new methods of lethal injection. "I hope that our failure to act today does not portend our unwillingness to consider these questions," she wrote.
It takes only four justices to accept a request for a full hearing, and it seems likely that Sotomayor and the other three "yes" votes hope to force the conservative majority to, indeed, "consider these questions." Whether they can get one of the majority to come to their side is another matter.